People v. Perez

S167051. July [No. 2010.] PEOPLE,

THE Plaintiff and Respondent, PEREZ,

RODRIGO Defendant and Appellant.

Counsel Larson, Court, R. David M. by Eric under the appointment Supreme under Court of for Defendant and Thompson, appointment Appeal, Appellant. Brown, Gillette, Jr., General,

Edmund G. Dane R. Chief Assistant Attorney General, Hamanaka, General, Victoria B. Attorney Pamela C. Assistant Attorney General, Wilson, Sanchez, M. Daniels and for Larry Mary Attorneys Deputy Plaintiff Respondent.

Opinion feet, BAXTER, J. a fired a bullet at a distance 60 from single Defendant hour, 15 at a and a car 10 to miles of seven officers going per peace group were than from another in civilian who less 15 feet one apart lit There was that night a lot late on in evidence dimly parking question. members, believed he at a of rival but no shooting gang defendant group he was individual when he fired at any evidence targeting particular hand, but The bullet hit officer in the his nearly severing finger, one group. that or one. The returned defendant knew special findings killed no jury officers, that peace should have known the victims reasonably of, crimes, counts defendant other seven among premeditated convicted murder officer and count of premeditated attempted of a one attempted peace (the victim). civilian murder find on that Court of reasoned that could this evidence

The Appeal jury kill any to each other was such that intending “the officers’ proximity basis, of all.” that the lives On shooting endangered the officers defendant’s affirmed defendant’s convictions of counts of attempted the court their and thereby endangering murder. But at a shooting person persons for the crime of attempted does not itself establish intent requisite lives intent to kill and murder. murder “Attempted requires specific intended of a ineffectual act toward accomplishing commission direct but 74 P.3d (2003) Cal.Rptr.3d v. Lee (People killing.” [3 whether, facts, determine on these sufficient 176].) We review to granted where no convictions of attempted evidence supports and one shot was fired at being targeted, group, individual was particular officer. single striking

We conclude the evidence sufficient is to sustain count of single premeditated officer. “The mental state peace required to kill particular murder is the intent human not a being, v. Stone being.” (People human Cal.4th Cal.Rptr.3d (Stone) 205 P.3d of a shot into a single group 272] [indiscriminate Here, of 10 to 25 one youths murder].) count of supported generic someone, fired the shot at the single to kill but group intending individual, without targeting any and without particular a means of using force calculated to kill in the everyone to the group. prosecutor argued the evidence established defendant did not have “a target specific mind” when he fired the shot at the and did not intend to “kill everybody” but rather intended to “kill wherever that anybody, these, bullet hit.” On facts such as where the shooter fires a indiscriminately someone, shot at a with intent to kill persons but individuals, without targeting any individual or particular is guilty {Ibid.) count of There is no doubt that defendant endangered lives of individual every into which he fired the shot. His assault with a firearm each against victim in the led to his conviction of seven counts of assault with a semiautomatic firearm on a officer and one peace count of victim, assault with a firearm on a civilian for which offenses he could be properly separately punished, subject to Penal Code section 6541 and facts, however, applicable sentencing guidelines. On these defendant can be found guilty a single count of murder premeditated attempted of a officer. peace Accordingly, of the judgment Court of will be Appeal reversed and the matter remanded to that court for further proceedings consistent with the views herein. expressed

FACTS AND PROCEDURAL BACKGROUND Defendant Perez Rodrigo from the appealed entered judgment following his conviction by trial of seven jury counts of murder premeditated attempted 664, (§§ 187, officer peace (e), (f), subds. (a)), subd. one count of 664, 187, premeditated (§§ (a)), subd. one count of assault with a (§ semiautomatic firearm (b)), subd. seven counts assault with a semiautomatic firearm (§ on officer peace (d)(2)), subd. and one count of (§ vandalism felony (a)). subd. The further found that personally discharged firearm causing great bodily injury 12022.53, (§ (b), (c), (d)) subds. and inflicted great bodily as result of injury a firearm being (§ from a motor discharged 12022.5), vehicle and that all the offenses were 186.22, committed for the benefit (§ of a criminal street gang

1 undesignated statutory All further references are to the Penal Code. at- on one count of (b)(1)). premeditated Defendant was sentenced subd. Fuentes) to 15 officer Rodolfo murder (pertaining injured peace tempted life, to life for use of years an enhancement of personal years plus remaining Sentences on the firearm causing great bodily injury. run and sentences on concurrently, were imposed

murder convictions officer, well firearm on a with a semiautomatic peace convictions assault enhancements, but stayed firearm were imposed pursuant as all use remaining to life. an term of 40 years to section aggregate prison 1, 2005, in an sitting officers who On Los July Angeles police on East Dena School Elementary unmarked car across from Christopher Avenue in East Los saw Angeles and South Grande Vista Boulevard Olympic exited from the front passenger of the school. Defendant a car in front stop and, that identified the Eighth a can of graffiti seat using spray paint, sprayed car, back into the which sped on two walls. Defendant then got Street gang Street that defendant is a member the Eighth A testified gang off. expert (VNE) Nueva Estrada which a rival of the Varrio criminal street is gang, South bordered on one side territory Street claims Eighth gang gang. Avenue; the street. on the other side of territory VNE claims the Grande Vista 2, 2005, defendant, his following day, July On the afternoon cousin, Guerrero, at- Lissette and Espinoza’s Vanessa girlfriend, Espinoza, the three left the Park. Guerrero testified that tended a in Elysian barbeque off at defend- Defendant Guerrero Espinoza after dark. dropped barbeque (under immunity) testified a grant and drove away. ant’s house Espinoza 3). (July a.m. the next morning her around 3:00 that defendant woke up he had shot and told thought intoxicated Espinoza Defendant appeared cop. 3, 2005,

Meanwhile, to a officers responded report about 1:30 a.m. on July building was in an apartment The car that had been stolen of a carjacking. arrived at Vista Avenue. Officers the VNE side of Grande lot abutting parking The carjacking the carjacking suspects. and detained some of the scene of in-field identifications and made positive scene brought victims the stolen car. found in and certain property the suspects victims, as and one of the carjacking uniformed officers At one eight point, cars, A marked lot. fourth were in parking three marked police well as a car with two the officers noticed comer. One of car was at a nearby police Vista, about 60 onto South Grande from East Olympic inside turning people hour. A shot was to 15 miles per feet away, driving approximately finger hit the middle window. The shot side fired from passenger one of the Fuentes, to and talking next standing who was Officer Rodolfo officers), (as did the other down Fuentes dropped victims. Officer carjacking car, to be down with him. The which appeared victim pulling carjacking males, on Grande Vista. two off northbound by sped occupied Hispanic illuminated by lot where the officers were was standing parking Grande There some trees between lot and overhanging lights. were also Avenue. The were described one officer as by “good Vista conditions lighting Monahan, where Officer who was alone standing can see.” enough you officers, described 20 to 30 feet from other approximately eight fired, several lighting as dim” dark.” When shot was “very “very officers were in close to one victim and the standing carjacking proximity officers, car. stolen As described of the various testimony carjack- Fuentes; victim was next to two feet ing standing Officer Officer was Tmjillo Fuentes; from Officer Meneses was about three feet Officer Davis was away; four to feet feet Officer was five away; Aguilera approximately away; Fuentes; Officer Villaneda 15 feet and Officer was 10 to from Officer away near the Ortega officers while taking photographs the victim’s car.2

The bullet that hit Officer Fuentes almost severed his middle finger, and several surgery established requiring days hospitalization. Investigators that the of the bullet continued a metal door and trajectory through security the wooden front door of a unit in the nearby building, ultimately apartment a kitchen cabinet and striking into the bathroom of the unit. The bouncing recovered bullet (or was found to be consistent with a a 10- .40-caliber millimeter) semiautomatic manufactured Clock. The handgun, by possibly vehicle used in the shooting was identified as eventually being registered defendant’s girlfriend, Espinoza. Morales,

Jose who testified in the hope receiving leniency following nonrelated stated he had with defendant. Defend- conspiracy plea, grown up ant told Morales that on the he had been night drinking with question friends and decided to the VNE’s When to a territory. pass got he saw some men bald stop sign, with heads who he were VNE thought gang that, (One incident, members. officer testified at the time of his head was “shaved.” Another officer described his hair as “close Defendant shaved.”) told Morales that “he shot when ducked that is when he noticed it they officers, was because . . . from their so he police flashing badges, [of] on the accelerator of his car to leave.” The defendant used was a stepped gun (Paul “Clock” to “Gizmo” belonging Leyva). (under a

Leyva testified that he owned a “40 Clock” grant immunity) handgun. knew defendant as and both Leyva “Creeper,” belonged 2 alone, approximately Officer Monahan was 20 to 30 feet from the of seven carjacking officers and the victim. Defendant acquitted was murder pertaining assault counts to Officer Monahan. defendant and Street Two before the when Eighth gang. days shooting, Leyva transaction, were defendant removed from his drug Leyva’s gun completing waistband, that it a nice When asked for it Leyva commenting weapon. back, Let me it.” me hold on to it. use Leyva responded, “[L]et later, he would come back for the in two Two agreed, stating gun days. days him “kind of when went to retrieve the defendant told that was Leyva gun, before, “in and then intoxicated” the had fired shot VNE night territory,” off home.” “just sped that the

The Officer Joe testified gang prosecution’s expert, Vasquez, rivals, and that Grande Vista gang Street VNE Eighth gang The lot where Avenue their territories. respective apartment parking separates commits took is in VNE The Street territory. Eighth gang shooting place sales, murders, murders, robberies, crimes narcotics such assaults, sexual and carjack- assaults with driveby shootings, deadly weapons, had been Officer was of the that this shooting ings. Vasquez opinion of, with, and for the benefit Street Eighth gang. committed in association behalf, been a in his own defendant admitted he had in past Testifying ceased in member of the Street but claimed his activities Eighth gang, gang Street on the gang graffiti 2004. Defendant denied spray painting Eighth He claimed two before the days shooting. school walls nearby elementary of the he drove to an shooting apartment complex further on night defendant was The two and drank beer. As marijuana meet friend. smoked home, drove the friend another friend asked for a ride. Defendant driving Boulevard, Defend- freeway. toward the Interstate 5 heading down Olympic said, them his friend “Who’s fools ant turned on Grande Vista Avenue when were, there, at which they Defendant said he did not know who fool?” right The friend told he heard a loud and saw his friend holding gun. point pop it, fool,” off onto the freeway. defendant to on so defendant “step sped officer had been defendant first heard on the news that a next morning, police did not conversations with Morales and Leyva shot. He further claimed his that he had fired a gun. include an admission shot, hit that because he fired a which

On defendant asserted appeal, Fuentes, murder of a one conviction of Officer premeditated A of the Court on the evidence. majority officer is sustainable People’s peace affirming eight attempted its rationale for disagreed, explaining Appeal “Here, defendant fired at a group people convictions as follows: heard and viewed testimony feet. The which jury, from a distance of 60 locations, was in a position the officers’ relative exhibits regarding each other was such that the officers’ determine whether proximity the lives shooting endangered of the officers defendant’s to kill intending any determinations, defendant of Indeed, these jury acquitted of all. making

229 from Fuentes. Accordingly, the count the officer who was farthest involving be affirmed.” for murder must defendant’s convictions below, fired a single that defendant had observing One dissented justice were vehicle at a who eight people bullet from a slow-moving from one another. The bullet hit and wounded less than 15 feet there evidence that defendant Officer Fuentes but killed no one. Nor was in the he fired the shot. individual when targeting any particular all counts of with the conclusion that Disagreeing majority’s eight premedi- tated substantial evidence because supported by defendant’s shot had the lives” of “endangered everyone group, observed, shot, from the of that one dissenting firing justice “Apart record no evidence that Perez intended to kill and rea- anyone,” contains soned, a moving “A bullet fired at a crowd from moderately dispersed car 60 feet cannot a reasonable inference that the shooter away support to kill intended to kill or that the shooter had eight people apparent ability all with that one shot.” eight people review, limited

We evidence granted issue whether sufficient sup- defendant’s eight convictions counts ports premeditated attempted murder based on his at the which struck Officer single shot Fuentes.

DISCUSSION Defendant the evidence in insufficient his contends this case is support conviction of seven of the counts of premeditated attempted “The test for a claim of of evidence in a determining insufficiency proper whether, record, criminal case is on the entire a rational trier of fact could find the defendant doubt. On reasonable guilty beyond appeal, [Citations.] we favorable to the and must must view evidence most light fact the trier could existence presume judgment every v. Jones (People (1990) deduce from the evidence. 51 reasonably [Citation.]” 294, 611, 643].) Cal.3d 314 P.2d 792 Cal.Rptr. [270

“ ‘The mental state murder has differed long required the intent to kill. from that for murder itself. Murder does not require required v. Lasko (People malice—a conscious for life—suffices. disregard Implied 441, v. 666].)’ (People (2000) 23 P.2d Cal.4th 999 Cal.Rptr.2d [96 Bland P.3d 28 Cal.4th Cal.Rptr.2d 1107] contrast, (Bland).) In intent to kill murder requires ‘[attempted direct act toward and the commission of a but ineffectual accomplishing Lee[, ; . . see killing.’ (People supra,] intended . 230 593, 390, (1996) v. Swain 12 Cal.4th

People 604-605 P.2d Cal.Rptr.2d 909 [49 994].)” 733, 163, (2005) v. Smith 37 Cal.4th (People 739 Cal.Rptr.3d [37 (Smith).)3 124 P.3d 730]

Thus, in order for defendant to be convicted of attempted each of the seven officers and the civilian in the into which he fired the group shot, had he acted with the intent to prosecution prove specific 739; Bland, (Smith, kill each victim. Cal.4th at 37 v. 28 supra, p. People supra, “ (Bland).) Cal.4th at 331 murder be p. must attempted judged ‘[G]uilt ” (Stone, as to each victim.’ Cal.4th at separately alleged supra, p. Bland, 331.) at quoting is true whether the p. alleged victim “[T]his (Stone, 141.) or particularly targeted chosen.” at randomly p. Stone,

In 46 Cal.4th we supra, considered the whether a question shooter a who fires shot into a to kill one of group people, intending one, but not can knowing caring which be convicted of a single (Id. 134.) count of murder. at We answered the affirma- attempted p. inquiry that, “The mental state tively, explaining for murder is the required intent to kill a human (Ibid.) not a human being, particular being.”

With to whether the evidence in this regard case is sufficient establish that defendant acted with intent to kill someone in the group “ at, he shot decisions have that act of toward a past recognized firing ‘[t]he close, blank, victim at a but not “in that range a manner could have point inflicted a mortal wound had the bullet been on is sufficient to target support (1997) an inference of intent to kill. . . .” v. Chinchilla (People [Citation.]’ (Chinchilla); see also v. Cal.App.4th Cal.Rptr.2d 761] [60 1].)” 1224-1225 Villegas 92 Cal.App.4th Cal.Rptr.2d (Smith, 741.) 37 Cal.4th at a supra, Consistent with these p. principles, rational trier of fact could find that act of a bullet at defendant’s firing single feet acted from distance of 60 established that he group persons with to kill someone in the he fired intent who group upon. person “[A] intends to kill can be murder even if the has no guilty person in mind. An indiscriminate would-be killer is specific target just culpable (Stone, 140.) as one who targets specific person.” supra, p. Indeed, defendant has that “the record the conclusion acknowledged supports intended to kill whoever in the crowd was struck the bullet.” [he] facts, on these the evidence is sufficient to defendant’s Accordingly, officer. conviction of one count of premeditated attempted peace evidence, however, is insufficient to sustain defendant’s convic In case there is tions of the seven counts of murder. this remaining 3 act shot into the constituted the undisputed It is that defendant’s Lee, 623.) (People supra, p. act” 31 Cal.4th at required “ineffectual any particular targeted knew or specifically that defendant

no evidence Nor is there he fired officers upon.4 or individuals individual the with or more persons to kill two intended evidence that specifically intended to defendant specifically is no evidence shot. there Finally, off thwarted from kill but was in the group5 two or more persons Without his control.6 beyond shots circumstances the additional required counts of more, of eight premeditated not conviction this record will murder. attempted additional of seven that “the nevertheless argue presence

The People intent to combined with Officer Fuentes surrounding [defendant’s] persons the crime of elements of fulfills the established one of them any shoot the the rationale of Echoing to each of those persons.” murder as attempted of convictions the multiple in affirming of the Court of Appeal majority the of all” murder, i.e., lives “endangered that defendant’s shooting attempted whether the to determine jury that was for argue People “[i]t of the crowd as members to be counted enough’ these individuals were ‘close determine for the to jury it was Additionally, that targeted. [defendant] to the crowd from the shooter an distance of 60 feet whether approximate added.) (Italics In support, them.” endangered any ‘close range’ Smith, Bland, Cal.4th supra, 28 Cal.4th cite supra, People that to the extent neither Bland nor Smith stands for proposition 733. But all, them the shooter endangers at a bullet shooting single group persons in the individual every group be found may guilty attempted here. either Bland or Smith apposite that alone. Nor are the facts of on basis into Bland, fired numerous rounds the defendant In supra, (the target) injuring apparent car at close one range, killing occupant 4 case, jury would in this a reasonable on the evidence People The concede that “[b]ased group fired into the of officers target when he specific that did not have a infer [defendant] a distance of 60 feet.” from 5 ability kill apparent did not have also conceded that “[defendant] The have shot,” ability apparent argue “he did have the people but all with argue “a could they that that rational shooting he did kill them all.” From continue until traveled finger, and that it then nearly severed Officer Fuentes’ considered that the bullet have cabinet, door, bouncing a rest. A rational before a metal and a wooden on and struck screen attempted murder supported at least three that those strikes jury could have thus found convictions.” the bullet’s change in the direction of argument happenstance each People’s The that attempted murder misses separate counts of support additional trajectory could somehow group he fired individual in the to murder more than one defendant mark. Whether intent to kill that he acted with the evidence establishes that upon turns on whether record, however, firing off of evidence that after is devoid person persons. additional shot, everyone group. shooting until he killed to continue intended 6 that to witnesses might a shooter announces circumstances be where example An of such comer, then gang on everyone in a of rival members to murder he intends shot. gun jams when the after first at the but is thwarted shoots the other two. We considered the facts the defendant’s underlying convictions and endorsed a “kill zone” theory his convictions of one count upholding (Id. of murder and two counts murder. 329-331.) pp. Bland that intent recognized to kill does not transfer victims who are not killed, and thus “transferred intent” cannot serve aas basis for a finding (Bland, supra, 326-331.) 28 Cal.4th at Nor does our pp. decision in Bland that suggest single-bullet cases more than one involving murder victim potential attempted must be under a kill zone analyzed rationale. “Bland that a shooter simply recognizes be convicted of may counts of murder on a ‘kill zone’ where the theory evidence establishes the shooter used lethal force and intended designed to kill in an area around the everyone (i.e., zone’) victim the ‘kill targeted the means of the that killing of victim. Under such circum- accomplishing stances, a rational could conclude jury a reasonable doubt that the beyond victim, shooter intended to kill not only his but also all targeted others (Bland, knew were in the zone of fatal harm. Cal.4th at supra, 28 329-330.)” (Smith, pp. supra, 745-746.) Cal.4th at Bland in turn pp. cited the of decision the Court of Maryland in Ford v. State 330 Md. Appeals 984], A.2d which several of gave facts that examples might support a “kill zone” of murder: the theory of a bomb in an airliner placing board, when the desire is to kill a on the of an particular person firing automatic, at a of on the street motivated the weapon group people desire by to kill one in the or the use of an particular person device explosive (Bland, to kill in the devastating enough everyone 28 Cal.4th at group. supra, 329-330; State, see Ford pp. 1000-1001.) v. 625 A.2d at supra, pp.

The facts of this case do not establish that defendant created a “kill zone” shot from a car at a by firing single distance of 60 feet at the moving individuals, of that were all in notwithstanding they standing close one relatively another. Bland’s kill zone of proximity theory multiple murder is defined the nature and of the attack. necessarily by scope The bullet under these circumstances not the of firing is equivalent blast, an device using with intent to kill in the area of the explosive everyone fire, a crowd with automatic a means likewise calculated spraying weapon to kill fired The at everyone indiscriminate shot upon. more, without does not amount to an persons, everyone in Bland is not on these facts. group. holding controlling Smith, This in court’s decision is likewise distin- supra, from this case. In Smith the feet guishable defendant was few behind a that car from the curb when he fired a pulling away windshield, bullet the rear the driver’s headrest and through hitting barely (the both the driver defendant’s former and her three- missing girlfriend) son, month-old who was “secured in a infant car seat in the rear-facing (Id. deferential 736-737.) her. at Applying backseat” behind directly pp. standard, affirmed convicting verdicts jury’s of evidence we sufficiency fact We first on the focused the defendant of two counts mother, (the with both victims behind the directly that infant was seated (Id. direct at “in line of fire.” infant) mother and the plainly [the defendant’s] direct in shooter’s 745.) We both victims concluded presence p. fire, other, them to kill ability him gave apparent line one behind Chinchilla, at (See also supra, Cal.App.4th both with one shot. crouched, bullet fired at two officers who were 690 [single police pp. him, other, fire in line of and visible directly one behind the shooter’s murder].) two counts of attempted supported the jury’s went the evidence explain why We on in Smith supported kill both the conclusion defendant had acted with intent to that the mother and the We observed that “evidence defendant purpose infant. victims, both of seated a lethal firearm the whom were fully discharged vehicle, other, fire, line of can directly behind the with each his one (Smith, an that he acted to kill both. inference with intent [Citations.]” 743.) We “The 37 Cal.4th at defense below offered supra, p. explained, inference, drawn on the nothing undercut the force evidence, that defendant intent to kill victims when acted with both People’s he fired off a round at them close each of whom he knew range, from shooter, the in line of fire. Defendant testified he was not the directly his that some must have fired the shot unidentified shooter implication being (defendant shots). at the testified heard multiple gun jury shots car at no his claim disbelieved him. defense trial thus furnishes for His support to intent to on that the evidence was insufficient establish his appeal People’s Last, if act of (Ibid.) kill the we that “even defendant’s baby.” observed at and to shooting was done ‘without advance consideration baby infer, from eliminate a obstacle or could still momentary annoyance,’ circumstances, acted with malice toward totality express of the that he 770, [92,] [(1996)] that victim. Arias 13 Cal.4th 162 Cal.Rptr.2d v. (People [51 743-744.)7 P.2d 37 at 980].)” (Smith, supra, 913 Cal.4th pp.

Here, Smith, 733, v. to the facts of 37 Cal.4th and supra, People contrast Chinchilla, is to estab the evidence insufficient Cal.App.4th supra, kill two or individuals by lish defendant acted with intent to more shot at the of seven officers civilian. at of each individual in the endangering Defendant’s act of the lives He was he fired Willnot convicted go which the shot unpunished. properly 7 essence, are, (People ‘one unlawfully express “Intent to and the same.’ kill malice 588].)” (Smith, supra, (1991) Saille 820 P.2d Cal.Rptr.2d 54 Cal.3d 1114 [2 739.) p. Cal.4th at seven counts of assault with a semiautomatic firearm on a officer and peace one count victim, of assault with a firearm on a civilian which convictions were affirmed on and for which appeal, offenses he be may separately punished, subject to the court’s sentencing discretion and sentenc- applicable facts, however, ing guidelines. On these we conclude the evidence is suffi- cient but a support single count of premeditated murder of a Stone, (See officer. supra, peace 46 Cal.4th at 140.)8 p.

CONCLUSION The judgment of the Court of is reversed for the Appeal purpose to that court with remanding directions to conform the judgment to reflect defendant’s conviction of a count of premeditated officer, a peace and for further proceedings consistent with the views herein. In all expressed other is affirmed. respects judgment J., Kennard, J., Chin, J., Moreno, J., George, J., C. and Corrigan, concurred. WERDEGAR, J., Concurring. I concurin the judgment in the majori ty’s conclusion that defendant’s single discharge handgun was insuffi cient more than one conviction for I write to note separately with the my disagreement majority’s attempt distinguish v. Smith 124 P.3d Cal.Rptr.3d 730] (Smith), view, in which I dissented. In Smith my does not differ meaningfully case, from the and the present to find a majority’s distinction results attempt in an de facto rule that a unsupportable of itself single gunshot may rise give provided multiple attempted convictions victims were alleged “ ” ante, all ‘in direct line 233.) of fire.’ (Maj. [the opn., p. defendant’s] Taken together, Smith allow decision and today’s convictions 8 Stone explained that in attempted prosecution, an murder where the defendant indiscrimi nately single fires a group shot at a of two persons, or more “the information does not necessarily have to name a specific victim. Penal Code section 952 states it is sufficient if the substance, charge in ‘contains a statement that the accused has committed some public offense therein specified,’ ‘may any which be in . . . give words sufficient to the accused notice of the Code, (See 951.) offense of which he is right accused.’ also Pen. A defendant’s to be § charges informed of the ‘is satisfied when the charges against accused is advised of the him so that he has a opportunity prepare present reasonable to and a defense and is not taken (People 992, surprise by (2003) the evidence offered at trial.’ v. Cal.App.4th 109 Ramirez 999 542].) someone, Cal.Rptr.2d If the attempted although is accused of [135 necessarily specific not a person, allege enough give it would be sufficient to facts to notice of the charged incident referred to and that the defendant attempted example, is with murder. For \Stone1, murder, in it would allege have been sufficient to that defendant attempted committed 21, 2005, in that on or about October group persons to murder a member of a Lemoore, gathered together parking Although in a ways charge lot in California. other a exist, case like charge example this no doubt a like this would provide adequate notice of the (Stone, supra, 141-142.) offense of which defendant pp. was accused.” 46 Cal.4th at

235 fire,” any or not evidence shows the line of whether victims “in positioned even all the victims or intended his shot strike kill single the defendant could, a round from single not in the circumstances it and whether or believed of this novel to do so. The root had realistic any potential the used weapon Smith, than distinguished. be rather is in which should overruled thinking the intent to kill another murder both A conviction for requires Lee (2003) v. (People act toward so. doing and a direct but ineffectual person 613, 402, 176].) P.3d When the evidence 623 74 31 Cal.4th Cal.Rptr.3d [3 so in a shot fired the direction of group people, shows events, one could, have and killed any in the course of struck ordinary bullet (but find defendant committed one), them can rationally 106, v. Cal.3d People Welch (See (1972) act 8 direct toward one killing person. 217, an an act must 501 P.2d constitute attempt, 118 Cal.Rptr. 225] [to [104 ’ ” “ 1 an the crime” if not such “as would result in ordinarily be Smith, Where, as or other failure interruption preventing completion].) member of evidence as a motive to kill one identifiable shows well arises, and a of intent to kill that (or person an inference pair), particular Smith, supra, (See murder of that is person conviction for proper. where, here, And (dis. J.).) at of Werdegar, Cal.4th 752-753 pp. opn. lethal to all hostility an undifferentiated but evidence shows potentially any one person an inference of an intent to kill members of group, arises, in that manner charged and a count of ante, 233-234; v. Stone (2009) 46 Cal.4th People at is proper. (Maj. opn., pp. 272].) But none of the 140-142 P.3d Cal.Rptr.3d [92 more, without estab gunshot, described situations does evidence than one lish either a direct act toward the more killing person intent kill victims. course, of the attack an Of cases occur where the nature and show scope area or attack everyone group, intent kill within particular the so-called “kill zone” goal. constitutes a direct act toward that These are Bland People (See 28 Cal.4th 329-331 Cal.Rptr.2d cases. v. Stone, 1107]; at supra, also p. P.3d see [the an identifiable zone is not on the assailant’s theory dependent having kill devices, the include use of explosive spraying primary target].) Examples into a location or automatic or semiautomatic fire weapon Bland, 329-331.) (See at food into a household. pp. introduction of poisoned ante, case, and Smith is this one. (Maj. opn., not a kill zone neither But 232; Smith, 745-746.) 37 Cal.4th at supra, pp. p. circumstances, too, in some discharge might, So of firearm single and the intended to kill victims commit- findings multiple support his and marksmanship act so. If the defendant’s doing ted direct toward choice of weapon ammunition were such that a single shot would victims, two kill or more the ordinarily and if defendant were aware that the both actus reus and probability, mens rea of murder would attempted Smith, here, arguably be satisfied. But in the as evidence showed neither that could, events, the defendant’s the single gunshot in course of be ordinary victim, expected to strike and kill more than one nor that Smith intended such an result. It will be a rare in exceptional case which the can an prove assailant intended shoot and kill B by shooting person through killing A, Smith, and no such was offered in person proof more than it was here. any the lack of evidence that the defendant Despite in Smith was capable, shot, knew himself to be both with a capable, killing victims the characterizes the the present majority Smith facts—unlike facts here—as sufficient to two convictions of support murder because both “ victims, child, alleged mother and her infant were ‘in [the defendant’s] ” ante, direct Smith, line of fire.’ at (Maj. opn., p. supra, 37 quoting 745.) observed, Cal.4th at As in Smith p. my dissenting the evidence opinion the the actually was to who in infant contrary: was an car seat behind baby, mother, his was well the line of positioned below Smith’s aim at the apparent Smith, (See mother’s at (dis. head. J.).) fn. But p. Werdegar, opn. even the evidence were victims so that a bullet could positioned not, itself, have struck and killed them both physically would to, inferences that defendant’s single shot was intended and in the to, ordinary course events was have that result. Without such expected Smith, inferences in neither mens rea nor actus reus for counts of two murder was proven. Smith, is not My the debate on but to out purpose merely reopen point that decision’s consequences error case. perpetuating present Because the factual majority’s distinction between two is the cases “ ” Smith, in ‘line of fire’ in but positioning victims—assertedly ante, not so here at (maj. in apparently opn., pp. 232-233)—prosecutors future can cases be argue victims expected multiple all, so that a single could have hit them positioned gunshot though even evidence lacking be that the defendant’s may entirely gunshot objectively courts, to hit than likely, subjectively more one expected, person. Appellate turn, in will use the same criterion whether evidence was deciding sufficient for The number of from a multiple convictions. convictions arising will thus not on shooting come whether defendant was depend to have intended to and kill more than and to have person shoot one proven committed an act that had if bad would have that result not for aim ordinarily failure, or other on the but victims’ previously required, precise positions time of the The result bewill convictions shooting. arbitrarily returned and where cases the evidence established neither the mens upheld rea nor the than actus reus for more one count of reason, distinguished. instead be overruled Smith should

For this Moreno, J., concurred.

Case Details

Case Name: People v. Perez

Court Name: California Supreme Court

Date Published: Jul 29, 2010

Citation: 112 Cal. Rptr. 3d 310

Docket Number: S167051

Court Abbreviation: Cal.