Opinion
Dеfendants Izac McCloud and Jonzel Stringer fired 10 shots from a semiautomatic handgun at a party at which over 400 people
McCloud and Stringer were charged by grand jury indictment with two counts of murder and 60 counts of attempted murder, 14 of which were later dismissed. Defendants were tried together but before separate juries, which convicted both defendants of second degree murder for the two deaths, convicted Stringer of all 46 counts of attempted murder, and convicted McCloud of 46 counts of the lesser included offense of assault with a firearm.
In the published portion of our opinion, we conclude that the trial court prejudicially erred by instructing the jury on the “kill zone” theory of attempted murder. The record contains no evidence to support application of the kill zone theory.
Also in the published portion of our opinion, we conclude that the evidence is insufficient to sustain 46 attempted murder convictions. Rather, the evidence is sufficient to support only eight attempted murder convictions.
Defendants also raise a number of other issues, which we address in the nonpublished portion of our opinion; we conclude that most of them lack merit. We accordingly reverse in part, affirm in part, and remand for further proceedings.
BACKGROUND
A. Procedural Summary
The grand jury indictment charged McCloud and Stringer with the murders of Breon Taylor (count 1) and Dennis Moses (count 2), in violation of Penal Code section 187.
The charges against both defendants were tried together but to separate juries. Jury selection (starting with the Stringer panel) began on July 12, 2010. The McCloud panel began deliberations on September 9, 2010, and returned its verdict September 16, 2010. The Stringer panel began deliberations on September 13, 2010, and returned its verdict on September 21, 2010.
McCloud’s jury found him not guilty of first degree murder but guilty of second degree murder on counts 1 and 2. The jury also found McCloud not guilty of attempted murder but guilty of assault with a firearm (a lesser included offense) on the remaining 46 counts. As to counts 1 and 2, the jury found true all of the personal use of a firearm allegations under section 12022.53, and as to each of the remaining counts, the jury found true the allegation that McCloud personally used a firearm within the meaning of section 12022.5, subdivision (a).
Stringer’s jury deadlocked on first degree murder as to counts 1 and 2, so the prosecution elected not to pursue first degree murder convictions on those counts. After the court instructed the jury to that effect, the jury found Stringer guilty of second degree murder on counts 1 and 2 and guilty of attempted murder on the remaining 46 counts. The jury also found true the principal armed allegation as to all cоunts, but, as to each attempted murder count, the jury found not true the allegation that the attempted murder was willful, deliberate, and premeditated.
The court sentenced McCloud to 202 years to life in state prison, calculated as follows: 15 years to life as to count 1, plus 25 years to life for the firearm allegation as to that count; plus an identical sentence as to count 2; plus the upper term of four years as to count 3, plus three years for the great bodily injury allegation, plus 10 years for the personal use of a firearm allegation under section 12022.5, subdivision (a); plus one-third of the midterm of three years, plus 16 months for the personal use of a firearm allegation under section 12022.5, subdivision (a), as to each of the remaining 45 counts, with all sentences to run consecutively. The court also imposed various statutory fines and fees.
The court sentenced Stringer to 198 years to life in state prison, calculated as follows: 15 years to life as to count 1, plus three years for the principal armed allegation as to that count; plus an identical sentence as to count 2;
Both defendants timely appealed. We hereby order the appeals consolidated.
B. The Shooting
The tragic events underlying the charges took place on January 19, 2008, at a Masonic Lodge in Lakewood, at the 18th birthday party of twin brothers Randall and Carlton Hook. The Hook twins were founding members of an anti-gang social group called the “Acrites” (derived from the words “act right”), whose origins Randall Hook described as follows: “My friends and I started it because we chose—we specifically chose that term because there was and still is the misconception that inner city youth, especially African-American adolescents from Compton in particular—that we are troublemakers. So we wanted to counter that idea[]. And so we started the group to show that we could be from Compton, but we didn’t necessarily have to be bad kids.”
The Hook family took numerous steps to promote safety and avoid trouble at the party: They held the party at a Masonic Lodge next to a church, hired security guards, served no alcohol, and charged $10 for admission as a means of screening and controlling the flow of guests.
The party was well attended, with hundreds of people packed “elbow to elbow” inside and many more in line in the parking lot, waiting to enter.
Police responding to the scene found three victims who had been shot while inside the lodge. Dennis Moses was killed by a single shot to the head. Breon Taylor was killed by a single shot to the head as well. Ryan Gaines was shot once in the leg.
The criminalist concluded that the bullets recovered from Moses, Taylor, and Gaines were all fired from a nine-millimeter semiautomatic firearm, and that the bullets recovered from Moses and Taylor were fired from the same firearm. The bullet recovered from Gaines was too damaged for the weapon to be as conclusively identified, but the criminalist testified that “more likely than not” it was fired from the same firearm as the bullets recovered from Moses and Taylor. The criminalist also discovered “pitting” and the presence of a “glistening powdery substance” on the surface of the bullets recovered from the bodies of Moses, Taylor, and Gaines, аnd he concluded on that basis that those three bullets had passed through glass before striking the victims. Investigating officers identified five bullet strike marks on the exterior wall of the lodge near the broken window and two bullet holes in a car in the parking lot. All 10 bullets from the 10 casings were thus accounted for: two struck the car, five struck the wall, and three passed through the window and struck and lodged in Moses, Taylor, and Gaines. The gun itself was never found.
C. The Identification Evidence
Peter Adams was the only eyewitness who claimed to have seen Stringer at the party and to have seen McCloud fire the gun outside.
Adams’s statements in subsequent interviews with the police were not all consistent, and he admitted having given incorrect information to the police at various times. In a taped interview on February 4, 2008, he told police a version of events that was largely the same as the one he had told to Egland: There was some sort of fight at the party; a companion of McCloud’s told McCloud to “[e]nd the party” and “shoot it in the air”; and McCloud retrieved the gun from the car and shot at the party. In his trial testimony, Adams answered “I don’t remember” to nearly every question asked, and he specifically- denied having told the police who the shooter was. The recording of the February 4, 2008, interview, however, in which Adams told the police that McCloud shot at the party after having been told to “[e]nd the party” and “shoot it in the air,” was played for the jury.
Letwan Lucky testified that he had known McCloud for about seven years at the time of the shooting. McCloud sometimes came over to Lucky’s house with other friends, including Stringer, whom Lucky knew only as “JP.”
In the early afternoon on the day of the shooting, McCloud, Stringer, and another friend named Karon Lofton were at Lucky’s house when another individual, known to Lucky only as “Black-T,” arrived. Black-T brought with him a semiautomatic handgun, which appeared to Lucky to be “a 9, similar to a Clock.” Upon seeing the gun, Stringer and McCloud said they could use it for “protection” аt a party they were going to that night in Lakewood. Stringer and McCloud asked Black-T if they could use the gun, and he said they could. Stringer told McCloud to get the gun from Black-T, and McCloud agreed. McCloud, Stringer, Lofton, and Black-T then said they were going home to get dressed for the party and walked out of Lucky’s garage into the alley. McCloud and Black-T went in one direction, and Stringer and Lofton in another.
Lucky did not see McCloud again that day, but Stringer returned to Lucky’s house later that evening. (Lucky’s testimony concerning that encounter with Stringer was presented to Stringer’s jury only.) According to Lucky, Stringer seemed “nervous” and “scared” and kept walking in circles and saying “I didn’t do it.” Once Stringer calmed down, he said that he and McCloud drove to the party, Stringer “walked up to the door to go in, and they socked him in the face,” he ran back to the car “hollering ‘get ’em,’ ” got the gun from McCloud, fired two shots, and then handed the gun back to McCloud, who fired six more shots. Stringer and McCloud then got back into the car, and Stringer drove them away from the scene.
DISCUSSION
I. The Kill Zone Theory
Stringer objected in the trial court to the prosecution’s request that the jury be instructed on the kill zone theory of liability for attempted murder. On appeal, he argues that the trial court committed prejudicial error by instructing the jury on the kill zone theory.
A. Instructional Error
“ ‘The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty “to refrain from instructing on principles of lаw which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” [Citation.] “It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].” [Citation.]’ (People v. Saddler (1979)
“ ‘The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. (People v. Lasko (2000)
“Under the classic formulation of California’s common law doctrine of transferred intent, a defendant who shoots with the intent to kill a certain person and [kills] a bystander instead is subject to the same criminal liability that would have been imposed had ‘ “the fatal blow reached the person for whom intended.” ’ (People v. Suesser (1904)
Although transferred intent can support murder convictions if nontargeted individuals are killed, transferred intent cannot support attempted murder convictions concerning nontargeted individuals who were not killed. “[I]ntent to kill does not transfer to victims who are not killed, and thus ‘transferred intent’ cannot serve as a basis for a finding of attempted murder. (Bland, supra, 28 Cal.4th at pp. 326-331.)” (People v. Perez (2010)
Nonetheless, the kill zone theory, first approved by the Supreme Court in Bland, yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant’s “primary target.” (Bland, supra,
The kill zone theory consequently does not operate as an exception to the mental state requirement for attempted murder or as a means of somehow bypassing that requirement. In a kill zone case, the defendant does not merely subject everyone in the kill zone to lethal risk. Rather, the defendant specifically intends that everyone in the kill zone die. If some of those individuals manage to survive the attack, then the defendant—having specifically intended to kill every single one of them and having committed a direct but ineffectual act toward accomplishing that result—can be convicted of their attempted murder.
Two further features of the law of attempted murder are relevant to our analysis. First, in People v. Stone (2009)
Second, in Perez the defendant “fired a single bullet at a distance of 60 feet, from a car going 10 to 15 miles per hour, at a group of seven peace officers and a civilian who were standing less than 15 feet apart .... The bullet hit one officer in the hand, nearly severing his finger, but killеd no one.” (Perez, supra,
We now turn to the facts of this case. On aрpeal, respondent attempts to defend the giving of the kill zone instruction by arguing that when Stringer and McCloud shot the 10 bullets at the party, their primary target was the person who had punched Stringer. According to respondent, Stringer and McCloud “retrieved their handgun and fired a flurry of bullets—each of the ten rounds their semi-automatic handgun contained—at the person inside the Masonic Lodge who had punched [Stringer] moments earlier, thereby creating a kill zone. Thus, this is not a case . . . where [Stringer] and McCloud did not target a specific individual. . . . Instead, the jury could have reasonably concluded that they acted with the specific intent to kill the person who punched [Stringer] in the face, with the concurrent intent to kill the people standing nearby. Such facts support the ‘kill zone’ theory of liability presented to the jury.”
We disagree. In order for the kill zone theory to support 46 attempted murder convictions in the manner suggested by respondent, the record would have to contain evidence that Stringer and McCloud tried to kill the person who punched Stringer by killing all 46 people in the area where Stringer’s assailant was located. But the record contains no evidence that Stringer or McCloud intended to kill 46 people with 10 bullets. Nor does the record
Respondent attempts to fill this gap in the evidence by referring to the extremely crowded conditions at the party, where hundreds of people were present. According to respondent, “[gjiven the number of guests at the party, it is clear that there were dozens upon dozens of victims in the direct line of fire when [Stringer and McCloud] unloaded their semi-automatic handgun into the Masonic Lodge. As in [Smith], the presence of these victims packed ‘elbow to elbow’ gave [Stringer and] McCloud the ability to kill multiple victims with one shot. Accordingly, sufficient evidence was presented in support of a ‘kill zone’ theory of liability as to the 46 counts of attempted murder.” The argument relies heavily upon Smith, a case in which the Supreme Court affirmed two attempted murder convictions arising from a single gunshot fired in the direction of a car’s driver from a few fеet behind the car, when the driver’s son was in an infant car seat directly behind the driver’s seat. (Smith, supra, 37 Cal.4th at pp. 736-738.) The court concluded that the evidence was sufficient to “support an inference that [the defendant] acted with intent to kill both” the driver and the son. (Id. at p. 743.)
Again, we find respondent’s argument unpersuasive. Here, as in Perez, “the evidence is insufficient to establish that defendants] acted with the intent to kill two or more individuals” per shot fired. (Perez, supra,
In closing argument at trial, the prosecution attempted to support the 46 counts of attempted murder by arguing that the 46 named victims were grouped into three kill zones: one around Moses, one around Taylor, and one in the parking lot, near the car that was hit by two bullets. According to the prosecutor, “[t]he kill zone says that anyone who is in the line of fire, anyone who could have potentially been hit is a victim of that attempted murder. And one of the instructions that the judge read to you is that a person who intends to kill can be guilty of attempted murder, even if the person has no specific target in mind. [¶] What does that mean? You take a gun, you shot at a party, you are not sure who at that party is going to get hit, you can still get the kill zone. You arе still endangering every single person in that line of fire.” The prosecutor continued: “[T]here is the Breon Taylor group. All of these people that I listed, all of these people that were near Ms. Taylor when she was killed, they were in the path of the bullets, or the potential path of the bullets, because as [the bullets] are coming in that window, anyone who is in or around, near that counter [where Taylor was dancing], is in that kill zone and that zone of risk when she was killed. [¶] The Dennis Moses group. And this is probably even more pertinent, because they were so close to that window. That group of kids that were standing right by the window, right by the kitchen as bullets were being fired through that window, those people that were at risk just by being near him. [¶] And the outside group. And we get to this because of the shots [that struck the] car. The shooting at the building wasn’t enough. These two defendants turned the gun and fired towards that group of kids that was waiting to get in the line. Fortunately, instеad of hitting one of them, hit that car instead. [¶] All of those kids are all in the zone of risk. All of them potential and actual victims in this case.”
For the reasons we have already explained, the prosecutor’s argument was based on a legally erroneous conception of the kill zone theory. First, the prosecutor did not argue that there was a primary target (and there is no evidence that Taylor or Moses or anyone near the car was a primary target), so the argument presented no factual basis for application of the kill zone theory. The theory applies only if the defendant chooses, as a means of killing the primary target, to kill everyone in the area in which the primary target is located; with no primary target, there can be no area in which the primary
For all of the foregoing reasons, we conclude that the trial court erred by instructing the jury on the kill zone theory. The record does not contain substantial evidence to support application of the theory in this case.
It should be noted that the Supreme Court has repeatedly explained that jury instructions on the kill zone theory are never required. (Stone, supra, 46 Cal.4th at pp. 137-138; Smith, supra,
B. Prejudice
State law instructional error is reviewed for harmlessness under the standard articulated in People v. Watson (1956)
In the prosecution’s closing argument at Stringer’s trial, the only articulated basis for conviction on the attempted murder charges was the kill zone theory. (For example: “[T]he important thing tо take away from this is the kill zone. And this is how all those other kids, . . . this is how we get to their attempted murder. This is how we prove to you that the defendant Stringer is guilty of that.”) Thus, the prosecution’s argument for Stringer’s guilt on each of the 46 counts of attempted murder was based entirely on an instruction that should not have been given. That strongly suggests that it is reasonably probable that Stringer would have obtained a more favorable result in the absence of the instruction.
On appeal, respondent does not argue that if the trial court erred by giving the kill zone instruction, then the error was harmless. Like the prosecution in the trial court, respondent does not attempt to present any theory on which Stringer’s attempted murder convictions might be affirmed in the absence of the kill zone theory. This likewise strongly suggests that it is reasonably probable that Stringer would have obtained a more favorable result in the absence of the instruction. Indeed, we are aware of no argument for the conclusion that the erroneous giving of the kill zone instruction in this case was harmless.
The elements of attempted murder are specific intent to kill and a direct but ineffectual act toward accomplishing the intended killing. (Smith, supra, 37
In addition, the McCloud jury acquitted McCloud on all 46 counts of attempted murder, convicting him of assault instead. Although each jury heard some evidence that was not presented to the оther, and although Stringer’s and McCloud’s roles in the charged crimes were not identical, the evidence against both defendants was to a very large extent the same. Consequently, McCloud’s acquittal on all counts of attempted murder is consistent with our conclusion that the evidence of specific intent to kill was not overwhelming.
For all of the foregoing reasons, we conclude that it is reasonably probable that Stringer would have obtained a more favorable result on the 46 attempted murder counts if the trial court had not erred by instructing the jury on the kill zone theory. We therefore must reverse his convictions on those 46 counts.
McCloud argues that the evidence is insufficient to sustain his convictions on the 46 counts of assault because the record does not contain substantial evidence that he had the present ability to commit a battery on the 46 victims. Stringer likewise challenges the sufficiency of the evidence to sustain his 46 attempted murder convictions. Although we have already determined that Stringer’s convictions on the 46 counts of attempted murder must be reversed because of instructional error, if the prosecution introduced insufficient evidence to sustain convictions on some of those counts then they cannot be retried on remand.
In reviewing the sufficiency of the evidence, “[w]e view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin (2004)
A. Attempted Murder
The Supreme Court’s decision in Perez controls our analysis of the sufficiency of the evidence to sustain Stringer’s 46 attempted murder convictions. As discussed above, in Perez the defendant “fired a single bullet at a distance of 60 feet, from a car going 10 to 15 miles per hour, at a group of seven peace officers and a civilian who were standing less than 15 feet apart .... The bullet hit one officer in the hand, nearly severing his finger, but killed no one.” (Perez, supra,
Here, as in Perez, there is no evidence that Stringer and McCloud specifically intended to kill two or more persons per bullet fired. We analyzed that issue in part I.A., ante, so our discussion need not be repeated.
Here, as in Perez, there is no evidence that Stringer and McCloud specifically intended to kill 11 or more persons (i.e., more persons than bullets fired) but were only thwarted from firing off the required additional shots by circumstances beyond their control. For example, there is no evidence that the firearm used by Stringer and McCloud was equipped with a large-capacity magazine containing 15 rounds and that they were forced to stop shooting after the first 10 rounds because someone knocked the gun from their hands. On the contrary, the prosecution introduced nо evidence from which a reasonable jury could infer that the firearm used by Stringer and McCloud contained more than 10 rounds. The police criminalist testified that the “most common” magazine size for a nine-millimeter handgun is “ten cartridges per magazine”; he acknowledged that higher capacity magazines exist but gave no indication of how likely it was that Stringer and McCloud had used one. He also testified that even with a 10-round magazine, it would be possible for the gun to have “an additional cartridge in the chamber. You could have ten plus one.” But again, no evidence indicated that it was likely—as opposed to merely possible—that the gun used by Stringer and McCloud was equipped with a fully loaded 10-round magazine plus an additional round in the chamber. The lead investigating officer likewise testified that “the public is allowed to buy up to ... a magazine that holds ten,” which is “commonly available to the public,” but “[l]aw enforcement can buy a larger capacity magazine.” On this record, any inference that the firearm used by Stringer and McCloud contained more than 10 rounds would
All of respondent’s contrary arguments have already been addressed in part I.A., ante. For the reasons given, we do not find respondent’s arguments persuasive. Consequently, applying Perez, we conclude that “[w]ithout more, this record will not support conviction of [46] counts of premeditated attempted murder.” (Perez, supra,
B. Assault
III.-XI.*
DISPOSITION
In case number B229841, People v. Stringer, the two murder convictions are affirmed. The 46 attempted murder convictions are reversed, the sentence is vacated, and the matter is remanded for further proceedings consistent with this opinion.
In case number B228209, People v. McCloud, the two murder convictions are affirmed. Thirty-eight of the 46 convictions for assault with a firearm are
Mallano, P. J., and Johnson, J., concurred.
The petition of both appellants for review by the Supreme Court was denied March 13, 2013, S207658.
Notes
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Witnesses’ estimates of the number of people inside and outside varied, but all agreed the numbers were large. Police responding to the scene after the shootings collected names and contаct information from 428 individuals.
Another witness, Dominique Smith, testified that she saw McCloud pull out a gun during a confrontation inside the party, and that seconds later she heard gunshots and saw muzzle flash from the gun. The police, however, found no physical evidence that any gun was fired inside the party. The lead investigating officer concluded that all shots were fired from outside; that was the only theory argued by the prosecution.
On appeal, McCloud and Stringer join in each other’s arguments to the extent they are beneficial. Because the kill zone theory is only a theory of liability for attempted murder and McCloud was found not guilty on all counts of attempted murder, the kill zone issue relates only to Stringer’s appeal.
In contrast, in People v. Vang (2001)
For the same reasons, the prosecutor’s attempt to combine the kill zone theory with Stone—under which a defendant can be guilty of attempted murder even if there was no specific target at all—was also erroneous. The prosecutor first drew attention to the jury instruction based on Stone: “And one of the instructions that the judge read to you is that a person who intends to kill can be guilty of attempted murder, even if the person has no specific target in mind.” The prosecutor then explained the Stone instruction in terms of the kill zone: “What does that mean? You take a gun, you shot at a party, you are not sure who at that party is going to get hit, you can still get the kill zone. You are still endangering every single person in that line of fire.” The explanation was incorrect. The Stone theory applies when there is no specifically targeted individual at all (in Stone, the defendant was guilty of one count of attempted murder for firing a single bullet at a group of 10 people, intending to kill someone or other but no one in particular). The kill zone theory applies when the defendant chooses, as a means of killing a targeted individual, to kill everyone in the area in which the targeted individual is located. The two theories are mutually exclusive. If Stone applies, then thеre is no targeted individual, so the kill zone theory cannot apply; if the kill zone theory does apply, then there must be a targeted individual, so Stone cannot apply.
We note that the language of CALJIC No. 8.66.1, the pattern instruction that was given to the jury concerning the kill zone theory, directly lends itself to the prosecutor’s incorrect statement of the theory, so the instruction should probably be revised. The instruction provides: “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the ‘kill zone.’] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a [‘kill zone’] [zone of risk] is an issue to be decided by you.” (CALJIC No. 8.66.1.) The instruction’s repeated references to a “zone of risk” are misleading and have no basis in the law—neither the phrase “zone of risk” nor even the word “risk” appears anywhere in Bland. The word “risk” likewise appears nowhere in Perez, nowhere in the majority opinion in Smith, and nowhere in Stone apart from a quote of CALJIC No. 8.66.1. (Stone, supra,
This conclusion holds true even for the attempted murder of Gaines, who was wounded by one of the shots. Gaines was inside the lodge, which was dark when the shots were fired from the parking lot outside. The record contains no evidence that Stringer and McCloud specifically targeted Gaines, had any reason to target him, knew that he was inside the lodge, knew where in the lodge he was located, or even knew him at all. On this record, the bullet’s striking Gaines, rathеr than someone else or no one at all, thus appears to be happenstance. Consequently, for purposes of harmless error analysis concerning the kill zone instruction, there is no difference between Gaines and any of the other 45 victims named in the attempted murder counts, even though the other 45 were not wounded.
The prosecution accordingly took the position in closing argument that Stringer and McCloud had fired until the gun was empty, using all 10 of the rounds they had available. To Stringer’s jury: “They loaded that gun all the way, ten full shots. ...[¶] [¶] He squeezed that trigger every single time until every bullet that was in that gun was fired.” To McCloud’s jury: “[W]hen you take a gun and you point it and you fire it time after time after time until the entire magazine is gone, there is only one inescapable conclusion for the intent of the shooter ....” “[McCloud and Stringer] were able to leave the moment that gun had lost its last round and flee.” “He squeezes the trigger ten times until every single bullet in that gun had been fired.”
See footnote, ante, page 788.