44 Cal.App.5th 196
Cal. Ct. App.2019Background
- Two Ramona Blocc Hustlas members, KeAndre Windfield (18 at offense) and Harquan Johnson (17), shot two fellow gang members on June 11, 2009; Smith died and Ricky Peete was wounded. Both fired multiple rounds at close range.
- Nikki was an eyewitness who testified at the preliminary hearing but relocated out of state before trial; her preliminary hearing video testimony was played at trial.
- Defendants were convicted of first‑degree murder (Smith), attempted premeditated murder (Peete), and assault with a semiautomatic firearm, with multiple firearm and gang enhancements. Each received aggregate indeterminate terms totaling 90 years to life.
- On appeal they challenged (inter alia) admission of Nikki’s prior testimony (confrontation/due diligence), sufficiency of attempted‑murder intent under the “kill‑zone” theory, failure to instruct on provocation for attempted murder, the firearm enhancements on count 2, and that sentences were cruel and unusual given their youth.
- The court affirmed convictions, upheld admission of Nikki’s videotaped preliminary testimony (finding due diligence), affirmed application of the kill‑zone theory here, rejected provocation/instruction and enhancement challenges, and affirmed Windfield’s sentence but ordered limited remands to make a record of youth‑related mitigation (per Franklin/Canizales/Perez and SB 260) and to correct clerical errors and custody credits for Johnson.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument | Held |
|---|---|---|---|
| 1. Admissibility of Nikki’s preliminary hearing testimony (Confrontation/due diligence) | Prosecutor exercised reasonable/due diligence to locate Nikki; prior videotaped testimony admissible. | Nikki was not shown unavailable; People failed to use adequate efforts after relocation; Confrontation violated. | Court: Due diligence shown (timely, multiple leads explored); testimony admissible; any error harmless given corroboration. |
| 2. Sufficiency of attempted‑murder intent under "kill‑zone" theory | Kill‑zone applies where attack and circumstances show intent to create zone of fatal harm; here multiple close‑range semiauto shots at two persons justified instruction and conviction. | Shots were targeted at Smith only; insufficient evidence defendants intended to kill Peete. | Court: Evidence supports kill‑zone (multiple shots, close proximity, victim shielding); instruction and convictions affirmed under Canizales framework. |
| 3. Failure to instruct sua sponte on provocation for attempted murder | Not applicable; provocation not supported. | Trial court should have instructed on provocation (CALCRIM 522) sua sponte or counsel was ineffective for failing to request it. | Court: No sua sponte duty; no evidence of provocation; counsel not ineffective; no error. |
| 4. Firearm enhancements as to count 2 (procedural/charging challenge) | Enhancements were properly alleged earlier; interlineation corrected victim name; defendants had notice and did not object; jury found true. | Third amended information misnamed victim and omitted enhancement as to count 2; enhancements invalid. | Court: Enhancements properly applied/forfeited by failure to object; jury instructions and verdict show corrections; enhancement imposition upheld. |
| 5. Sentencing—Eighth Amendment and youth considerations (Windfield/Johnson) | Sentences lawful; but defendants under 23/23+ may be entitled to develop record for youth‑related mitigation per Franklin and SB 260. | Sentences cruel and unusual (Miller/Graham) because very long terms functionally preclude parole, especially for juvenile Johnson. | Court: Windfield (18) sentence affirmed (not juvenile for Miller), but limited remand to create youth‑related record for Board of Parole (SB 260). Johnson (17) not resentenced but limited remand ordered to permit record of youth mitigation for future youth‑offender parole hearings; clerical corrections and one extra custody day ordered. |
Key Cases Cited
- People v. Canizales, 7 Cal.5th 591 (2019) (clarifies scope and limits of kill‑zone theory for attempted murder)
- People v. Franklin, 63 Cal.4th 261 (2016) (remand to create record of youth‑related mitigation for juvenile tried as adult)
- People v. Bland, 28 Cal.4th 313 (2002) (endorses concurrent intent / kill‑zone inference for attempted murder)
- Miller v. Alabama, 567 U.S. 460 (2012) (mandatory life without parole for juveniles violates Eighth Amendment)
- Graham v. Florida, 560 U.S. 48 (2010) (LWOP for nonhomicide juveniles violates Eighth Amendment)
- People v. Fuiava, 53 Cal.4th 622 (2012) (what constitutes reasonable diligence to locate a witness)
- People v. Cromer, 24 Cal.4th 889 (2001) (due diligence standard for proving witness unavailability)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause principles for admitting prior testimony)
- People v. Gutierrez, 58 Cal.4th 1354 (2014) (distinguishing juvenile sentencing claims)
- People v. Perez, 50 Cal.4th 222 (2010) (discussion of scope of kill‑zone and related intent issues)