Lead Opinion
Opinion
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 from one another in a dimly lit parking lot late on the night in question. There was evidence that defendant believed he was shooting at a group of rival gang members, but no evidence he was targeting any particular individual when he fired at the group. The bullet hit one officer in the hand, nearly severing his finger, but killed no one. The jury returned special findings that defendant knew or reasonably should have known that the victims were peace officers, and convicted defendant of, among other crimes, seven counts of premeditated attempted murder of a peace officer and one count of premeditated attempted murder (the civilian victim).
The Court of Appeal reasoned that the jury could find on this evidence that “the officers’ proximity to each other was such that in intending to kill any of the officers defendant’s shooting endangered the lives of all.” On that basis, the court affirmed defendant’s convictions of eight counts of attempted murder. But shooting at a person or persons and thereby endangering their lives does not itself establish the requisite intent for the crime of attempted murder. “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003)
There is no doubt that defendant endangered the lives of every individual in the group into which he fired the single shot. His assault with a firearm against each victim in the group led to his conviction of seven counts of assault with a semiautomatic firearm on a peace officer and one count of assault with a firearm on a civilian victim, for which offenses he could properly be separately punished, subject to Penal Code section 654
FACTS AND PROCEDURAL BACKGROUND
Defendant Rodrigo Perez appealed from the judgment entered following his conviction by jury trial of seven counts of premeditated attempted murder of a peace officer (§§ 664, subds. (e), (f), 187, subd. (a)), one count of premeditated attempted murder (§§ 664, 187, subd. (a)), one count of assault with a semiautomatic firearm (§ 245, subd. (b)), seven counts of assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)), and one count of felony vandalism (§ 594, subd. (a)). The jury further found that defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d)) and inflicted great bodily injury as a result of a firearm being discharged from a motor vehicle (§ 12022.5), and that all the offenses were committed for the benefit of a criminal street gang (§ 186.22,
On July 1, 2005, Los Angeles police officers who were sitting in an unmarked car across from Christopher Dena Elementary School on East Olympic Boulevard and South Grande Vista Avenue in East Los Angeles saw a car stop in front of the school. Defendant exited from the front passenger seat and, using a can of spray paint, sprayed graffiti that identified the Eighth Street gang on two walls. Defendant then got back into the car, which sped off. A gang expert testified that defendant is a member of the Eighth Street criminal street gang, which is a rival of the Varrio Nueva Estrada (VNE) gang. The Eighth Street gang claims territory bordered on one side by South Grande Vista Avenue; VNE claims the territory on the other side of the street.
On the afternoon of the following day, July 2, 2005, defendant, his girlfriend, Vanessa Espinoza, and Espinoza’s cousin, Lissette Guerrero, attended a barbeque in Elysian Park. Guerrero testified that the three left the barbeque after dark. Defendant dropped Guerrero and Espinoza off at defendant’s house and drove away. Espinoza testified (under a grant of immunity) that defendant woke her up around 3:00 a.m. the next morning (July 3). Defendant appeared intoxicated and told Espinoza he thought he had shot a cop.
Meanwhile, about 1:30 a.m. on July 3, 2005, officers responded to a report of a carjacking. The car that had been stolen was in an apartment building parking lot abutting the VNE side of Grande Vista Avenue. Officers arrived at the scene and detained some of the carjacking suspects. The carjacking victims were brought to the scene and made positive in-field identifications of the suspects and certain property found in the stolen car.
At one point, eight uniformed officers and one of the carjacking victims, as well as three marked police cars, were in the parking lot. A fourth marked police car was at a nearby comer. One of the officers noticed a car with two people inside turning from East Olympic onto South Grande Vista, about 60 feet away, and driving approximately 10 to 15 miles per hour. A shot was fired from the passenger side window. The shot hit the middle finger of Officer Rodolfo Fuentes, who was standing next to and talking to one of the carjacking victims. Officer Fuentes dropped down (as did the other officers),
The parking lot where the officers were standing was illuminated by overhanging lights. There were also some trees between the lot and Grande Vista Avenue. The lighting conditions were described by one officer as “good enough where you can see.” Officer Monahan, who was standing alone approximately 20 to 30 feet from the group of eight other officers, described the lighting as “very dim” and “very dark.” When the shot was fired, several officers were standing in close proximity to one carjacking victim and the stolen car. As described in the testimony of the various officers, the carjacking victim was standing next to Officer Fuentes; Officer Tmjillo was two feet from Fuentes; Officer Meneses was about three feet away; Officer Davis was four to eight feet away; Officer Aguilera was approximately five feet away; Officer Villaneda was 10 to 15 feet away from Officer Fuentes; and Officer Ortega was standing near the group of officers while taking photographs of the victim’s car.
The bullet that hit Officer Fuentes almost severed his middle finger, requiring surgery and several days of hospitalization. Investigators established that the trajectory of the bullet continued through a metal security door and the wooden front door of a unit in the nearby apartment building, ultimately striking a kitchen cabinet and bouncing into the bathroom of the unit. The recovered bullet was found to be consistent with a .40-caliber (or a 10-millimeter) semiautomatic handgun, possibly manufactured by Clock. The vehicle used in the shooting was eventually identified as being registered to defendant’s girlfriend, Espinoza.
Jose Morales, who testified in the hope of receiving leniency following a nonrelated conspiracy plea, stated he had grown up with defendant. Defendant told Morales that on the night in question he had been drinking with friends and decided to pass by the VNE’s territory. When defendant got to a stop sign, he saw some men with bald heads who he thought were VNE gang members. (One officer testified that, at the time of the incident, his head was “shaved.” Another officer described his hair as “close shaved.”) Defendant told Morales that “he shot and when they ducked that is when he noticed it was police officers, because [of] the flashing . . . from their badges, so he stepped on the accelerator of his car to leave.” The gun defendant used was a “Clock” belonging to “Gizmo” (Paul Leyva).
Leyva testified (under a grant of immunity) that he owned a “40 Clock” handgun. Leyva knew defendant as “Creeper,” and both belonged to the
The prosecution’s gang expert, Officer Joe Vasquez, testified that the Eighth Street gang and the VNE gang were rivals, and that Grande Vista Avenue separates their respective territories. The apartment parking lot where the shooting took place is in VNE territory. The Eighth Street gang commits crimes such as murders, attempted murders, robberies, narcotics sales, driveby shootings, assaults with deadly weapons, sexual assaults, and carjackings. Officer Vasquez was of the opinion that this shooting had been committed in association with, and for the benefit of, the Eighth Street gang.
Testifying in his own behalf, defendant admitted he had in the past been a member of the Eighth Street gang, but claimed his gang activities ceased in 2004. Defendant denied spray painting Eighth Street gang graffiti on the nearby elementary school walls two days before the shooting. He claimed further that on the night of the shooting he drove to an apartment complex to meet a friend. The two smoked marijuana and drank beer. As defendant was driving home, another friend asked for a ride. Defendant drove the friend down Olympic Boulevard, heading toward the Interstate 5 freeway. Defendant turned on Grande Vista Avenue when his friend said, “Who’s them fools right there, fool?” Defendant said he did not know who they were, at which point he heard a loud pop and saw his friend holding a gun. The friend told defendant to “step on it, fool,” so defendant sped off onto the freeway. The next morning, defendant first heard on the news that a police officer had been shot. He further claimed his conversations with Morales and Leyva did not include an admission that he had fired a gun.
On appeal, defendant asserted that because he fired a single shot, which hit Officer Fuentes, only one conviction of premeditated attempted murder of a peace officer is sustainable on the People’s evidence. A majority of the Court of Appeal disagreed, explaining its rationale for affirming the eight attempted murder convictions as follows: “Here, defendant fired at a group of people from a distance of 60 feet. The jury, which heard testimony and viewed exhibits regarding the officers’ relative locations, was in a position to determine whether the officers’ proximity to each other was such that in intending to kill any of the officers defendant’s shooting endangered the lives of all. Indeed, in making these determinations, the jury acquitted defendant of
One justice dissented below, observing that defendant had fired a single bullet from a slow-moving vehicle at a group of eight people who were standing less than 15 feet from one another. The bullet hit and wounded Officer Fuentes but killed no one. Nor was there evidence that defendant was targeting any particular individual in the group when he fired the single shot. Disagreeing with the majority’s conclusion that all eight counts of premeditated attempted murder were supported by substantial evidence because defendant’s single shot had “endangered the lives” of everyone in the group, the dissenting justice observed, “Apart from the firing of that one shot, the record contains no evidence that Perez intended to kill anyone,” and reasoned, “A single bullet fired at a moderately dispersed crowd from a moving car 60 feet away cannot support a reasonable inference that the shooter intended to kill eight people or that the shooter had the apparent ability to kill all eight people with that one shot.”
We granted review, limited to the issue whether sufficient evidence supports defendant’s convictions of eight counts of premeditated attempted murder based on his firing of a single shot at the group, which struck Officer Fuentes.
DISCUSSION
Defendant contends the evidence in this case is insufficient to support his conviction of seven of the eight counts of premeditated attempted murder. “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990)
“ ‘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)
Thus, in order for defendant to be convicted of the attempted murder of each of the seven officers and the civilian in the group into which he fired the single shot, the prosecution had to prove he acted with the specific intent to kill each victim. (Smith, supra,
In Stone, supra,
With regard to whether the evidence in this case is sufficient to establish that defendant acted with specific intent to kill someone in the group he shot at, past decisions have recognized that “ ‘[t]he act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. . . .” [Citation.]’ (People v. Chinchilla (1997)
The evidence, however, is insufficient to sustain defendant’s convictions of the remaining seven counts of attempted murder. In this case there is
The People nevertheless argue that “the presence of seven additional persons surrounding Officer Fuentes combined with [defendant’s] intent to shoot any one of them fulfills the established elements of the crime of attempted murder as to each of those persons.” Echoing the rationale of the majority of the Court of Appeal in affirming the multiple convictions of attempted murder, i.e., that defendant’s shooting “endangered the lives of all” in the group, the People argue that “[i]t was for the jury to determine whether these individuals were ‘close enough’ to be counted as members of the crowd that [defendant] targeted. Additionally, it was for the jury to determine whether an approximate distance of 60 feet from the shooter to the crowd was ‘close range’ and endangered any of them.” (Italics added.) In support, the People cite Bland, supra,
In Bland, supra,
Bland recognized that intent 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.) Nor does our decision in Bland suggest that single-bullet cases involving more than one potential attempted murder victim must be analyzed under a kill zone rationale. “Bland simply recognizes that a shooter may be convicted of multiple counts of attempted murder on a ‘kill zone’ theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. (Bland, supra, 28 Cal.4th at pp. 329-330.)” (Smith, supra, 37 Cal.4th at pp. 745-746.) Bland in turn cited the decision of the Maryland Court of Appeals in Ford v. State (1993)
The facts of this case do not establish that defendant created a “kill zone” by firing a single shot from a moving car at a distance of 60 feet at the group of eight individuals, notwithstanding that they were all standing in relatively close proximity to one another. Bland’s kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack. The firing of a single bullet under these circumstances is not the equivalent of using an explosive device with intent to kill everyone in the area of the blast, or spraying a crowd with automatic weapon fire, a means likewise calculated to kill everyone fired upon. The indiscriminate firing of a single shot at a group of persons, without more, does not amount to an attempted murder of everyone in the group. The holding in Bland is not controlling on these facts.
This court’s decision in Smith, supra,
We went on in Smith to explain why the evidence supported the jury’s conclusion that the defendant had acted with specific intent to kill both the mother and the infant. We observed that “evidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both. [Citations.]” (Smith, supra,
Here, in contrast to the facts of Smith, supra,
Defendant’s act of endangering the lives of each individual in the group at which he fired the shot Will not go unpunished. He was properly convicted of
CONCLUSION
The judgment of the Court of Appeal is reversed for the purpose of remanding to that court with directions to conform the judgment to reflect defendant’s conviction of a single count of premeditated attempted murder of a peace officer, and for further proceedings consistent with the views expressed herein. In all other respects the judgment is affirmed.
George, C. J., Kennard, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
All further undesignated statutory references are to the Penal Code.
Officer Monahan was standing alone, approximately 20 to 30 feet from the group of seven officers and the carjacking victim. Defendant was acquitted of the attempted murder and assault counts pertaining to Officer Monahan.
It is undisputed that defendant’s act of firing a single shot into the group constituted the “ineffectual act” required for attempted murder. (People v. Lee, supra,
The People concede that “[b]ased on the evidence in this case, a reasonable jury would infer that [defendant] did not have a specific target when he fired into the group of officers from a distance of 60 feet.”
The People have also conceded that “[defendant] did not have the apparent ability to kill all eight of the people with a single shot,” but argue “he did have the apparent ability to continue shooting until he did kill them all.” From that they argue that “a rational jury could have considered that the bullet nearly severed Officer Fuentes’ finger, and that it then traveled on and struck a metal screen door, and a wooden cabinet, before bouncing to a rest. A rational jury could have thus found that those strikes supported at least three attempted murder convictions.”
The People’s argument that each happenstance change in the direction of the bullet’s trajectory could somehow support additional separate counts of attempted murder misses the mark. Whether defendant attempted to murder more than one individual in the group he fired upon turns on whether the evidence establishes that he acted with specific intent to kill that additional person or persons. The record, however, is devoid of evidence that after firing off the single shot, defendant intended to continue shooting until he killed everyone in the group.
An example of such circumstances might be where a shooter announces to witnesses that he intends to murder everyone in a group of rival gang members standing on a comer, then shoots at the group but is thwarted when the gun jams after the first shot.
“Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ (People v. Saille (1991)
Stone explained that in an attempted murder prosecution, where the defendant indiscriminately fires a single shot at a group of two or more persons, “the information does not necessarily have to name a specific victim. Penal Code section 952 states it is sufficient if the charge ‘contains in substance, a statement that the accused has committed some public offense therein specified,’ which ‘may be in . . . any words sufficient to give the accused notice of the offense of which he is accused.’ (See also Pen. Code, § 951.) A defendant’s right to be informed of the charges ‘is satisfied when the accused is advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense and is not taken by surprise by the evidence offered at trial.’ (People v. Ramirez (2003)
Concurrence Opinion
I concur in the judgment and in the majority’s conclusion that defendant’s single discharge of a handgun was insufficient to support more than one conviction for attempted murder. I write separately to note my disagreement with the majority’s attempt to distinguish People v. Smith (2005)
A conviction for attempted murder requires both the intent to kill another person and a direct but ineffectual act toward doing so. (People v. Lee (2003)
Of course, cases occur where the nature and scope of the attack show an intent to kill everyone within a particular area or group, and the attack constitutes a direct act toward that goal. These are the so-called “kill zone” cases. (See People v. Bland (2002)
So too, a single discharge of a firearm might, in some circumstances, support findings the defendant intended to kill multiple victims and committed a direct act toward doing so. If the defendant’s marksmanship and his
Despite the lack of evidence that the defendant in Smith was capable, and knew himself to be capable, of killing both victims with a single shot, the present majority characterizes the Smith facts—unlike the facts here—as sufficient to support two convictions of attempted murder because both alleged victims, a mother and her infant child, were “ ‘in [the defendant’s] direct line of fire.’ ” (Maj. opn., ante, at p. 233, quoting Smith, supra,
My purpose is not merely to reopen the debate on Smith, but to point out the consequences of perpetuating that decision’s error in the present case. Because the majority’s only factual distinction between the two cases is the positioning of the victims—assertedly in the “ ‘line of fire’ ” in Smith, but apparently not so here (maj. opn., ante, at pp. 232-233)—prosecutors in future attempted murder cases can be expected to argue that multiple victims were positioned so that a single gunshot could have hit them all, even though evidence may be entirely lacking that the defendant’s gunshot was objectively likely, or subjectively expected, to hit more than one person. Appellate courts, in turn, will use the same criterion in deciding whether the evidence was sufficient for multiple convictions. The number of convictions arising from a single shooting will thus come to depend not on whether the defendant was proven to have intended to shoot and kill more than one person and to have committed an act that would ordinarily have had that result if not for bad aim or other failure, as previously required, but on the victims’ precise positions at the time of the shooting. The result will be multiple convictions arbitrarily returned and upheld in cases where the evidence established neither the mens rea nor the actus reus for more than one count of attempted murder.
Moreno, J., concurred.