Appellant Andrew Tran was convicted of murdering and attempting to murder two rival gang members. On appeal, he contends his conviction for attempted murder must be reversed because the trial court gave the jury a confusing and inapt instruction on the kill zone theory. We reject this contention. However, appellant was only 16 years old when he committed his crimes, and we agree with him that the case must be remanded so he can make a record of information that will be relevant to his youthful offender parole hearing in 25 years. Thus, while we affirm the judgment in its entirety, we remand for further proceedings.
FACTS
On the night of March 19, 2011, appellant had a party at his house that was heavily attended by members of his gang. The party dispersed around midnight, but the revelers did not go home. Instead, they filed into several cars and headed to a pool hall in Westminster where several members of a rival gаng were hanging out. Appellant drove to the pool hall in a white sedan with other members of his gang. As they were heading out, the front passenger gave appellant a gun, and he tucked it away in his car.
When appellant arrived at the pool hall, he parked by the other cars in his group. Then he and Jonathan Tieu walked up to the pool hall and made themselves visible to their rivals. It didn't tаke long before the two groups were exchanging hostile words in the parking lot. Witnesses to the exchange thought there was going to be a gang fight right then and there, but appellant and Tieu retreated to appellant's car, and their rivals got into their vehicles. Appellant then drove to the exit and positioned his car so he could see inside
There were eight people inside the SUV, including passengers Scottie Bui and Roger James. As the vehicle travelled along Westminster Boulevard, appellant pulled alongside it. Nguyen rolled down his window and began yelling out gang-related taunts, and the people in the SUV did the same. Nguyen then pulled a gun and began firing at the SUV. One of the shots hit Bui in the head, killing him. Another shot
Appellant was arrested shortly after the shooting. He initially denied any wrongdoing but eventually admitted his role in the incident, as described above. He also admitted having a history of аntagonism toward James and seeing him at the pool hall when the two groups squared off before the shooting.
He was charged with first degree murder, attempted murder, shooting at an occupied vehicle and street terrorism. ( Pen. Code, §§ 187, subd. (a), 664/187, 246, 186.22, subd. (a).)
DISCUSSION
Kill Zone Theory
Appellant challenges his attemрted murder conviction on the basis the trial court improperly instructed the jury on the kill zone theory of liability. In appellant's view, the kill zone theory was not applicable to the facts of his case, and the trial court worded its instruction in a confusing manner that amounted to "gibberish." While the instruction was inartfully worded, it was
Since he was not the shooter, appellant was prosecuted under aiding and abetting principles. Specifically, the prosecution theorized appellant was guilty of attempted murder beсause he directly assisted Nguyen in shooting James and/or because the shooting was a natural and probable consequence of the disturbance appellant caused at the pool hall. Appellant does not challenge the trial court's instructions pertaining to these theories. Instead, he focuses on the instructions pertaining directly to the attempted murder charge.
As to that charge, the trial court told the jury, "To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; and [¶] 2. The defendant intended to kill that person." The court also instructed the jury:
"A person may intend to kill a specific victim or victims and at the same time intend to kill evеryone in a particular zone of harm or kill zone. [¶] In order to convict the defendant of the attempted murder of Roger James, the People must prove that the defendant not only intended to kill
Neither the prosecutor nor defense counsel mentioned the kill zone theory during closing arguments. However, during its deliberations, the jury sent the trial court a note asking, "1. Would [the defendant] have to had specifically targeted Roger James to be found guilty of attempted murder? [¶] 2. What if he targeted [the] entire kill zone without expressly thinking [of] Roger James?"
After consulting with counsel, the trial court told the jury, "1. Yes, if you find the kill zone theory applies. The kill zone theory applies only if the evidence shows the defendant intended to kill Roger James by killing everyone in the area in which Roger James was located. [¶] 2. On the other
The first issue we must decide is whether the kill zone theory was applicable to the facts of this case. For the reasons explained in People v. Bland (2002)
On aрpeal, the Supreme Court found that while the doctrine of transferred intent can be applied when the primary target is murdered and unintended victims are also killed, it does not apply when the unintended victims are only injured. ( Bland, supra , 28 Cal.4th at pp. 326-331,
As to that theory, the court explained, "although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within ... the 'kill zone.' 'The intent is concurrent ... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in ordеr to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the
As in Bland , the circumstances in this casе indicate appellant and Nguyen intentionally created a kill zone around the murder victim Bui. Indeed, by firing a hail of bullets at the vehicle in which Bui was riding, they intentionally exposed everyone in the vehicle to mortal danger. Under these facts, the jury could reasonably infer appellant and Nguyen not only intended to kill Bui, but everyone else in the vehicle, including James. Therefore, the kill zone instructiоn was factually applicable. (Compare People v. Stone (2009)
The odd thing about the kill zone instruction given in this case, however, is that it did not identify the murder victim Bui as the primary target of the gun fire. Instead, it named Jаmes as both the primary target and a secondary victim of the gun fire. This could very well have prejudiced the prosecution , insofar as it effectively deprived it of the opportunity to obtain a conviction for attempted murder based on the theory of concurrent intent. However, it could not possibly have prejudiced appellant because it expressly required the jury to find he harbored the intent to kill James in order to convict him of that offense. In fact, the kill zone instruction was repetitive in terms of conveying that requirement in that it required the jury to find "defendant not only intended to kill Roger James," but also that he "intended to kill Roger James or intended to kill Roger James by killing everyone in the kill zone[.]" Either way, appellant could not have been found guilty of a kill zone attempted murder under this instruction unlеss the jury found he intended to kill James. Therefore, any error in the wording of the kill zone instruction was patently harmless. There is no basis to disturb appellant's conviction for attempting to murder James.
Appellant also contends the case must be remanded so he can make a record of information that will be relevant to his future parole hearing. On this point, we agree.
Appellant does not challenge the substance of his sentence. He simply wants the chance to offer evidence bearing on his future suitability fоr parole. And he should have it.
In recent years, the courts have redefined the parameters of juvenile sentencing. In Graham v. Florida (2010)
In response to Graham, Miller, and Caballero , the Legislature enacted section 3051. That section entitles offenders such as appellant, who have committed a crime carrying a term of 25 years to life or greater and are not otherwise excluded from its terms, to a "youth offender parole hearing" 25 years into their prison sentence. (§ 3051, subd. (b)(3); see also §§ 3046, subd. (c) & 4801, pertaining to juvenile parole hearings.)
In People v. Franklin (2016)
In Franklin , the record was unclear whether the juvenile had been given a sufficient opportunity at sentencing to make a record that included this sort of information. ( Franklin, supra ,
Relying on this court's decision in People v. Phung (2017)
In arguing otherwise, respondent contends appellant's probation report contains sufficient information to facilitate his future parole hearing. That report contains the standard information that is supplied to the trial judge in virtually every criminal case, i.e., information about the defendant's fаmily background and social history, the circumstances of his offense, his prior record, his adjustment in custody, and the probation officer's recommendation for sentencing. However, the report is largely bereft of information about appellant's character, cognitive ability, psychological functioning or maturity. It tells us very little about what kind of 16-year-old appellant is other than the fact he is the kind who commits this crime. Appellant should have the chance to provide a fuller picture than that. Indeed, the report essentially ignores the fact appellant was only 16 years old when his crimes occurred, and it offers no analysis or insight whatsoever as to how this factor may have affected his behavior. In short, the report does not obviate the need for a hearing respecting appellant's youthful characteristics,
We do not take lightly the additional expense this ruling entails. But the issue will be whether a middle-aged man who has spent a quarter-century in prison should be released. We think decisions like that should be as informed as possible.
Respondent also argues a remand is unnecessary because appellant has failed to explain exactly what information he would provide at a Franklin hearing. That argument puts the cart before the horse. We suspect it will take a considerable amount of time and effort for appellant and his attorney to prepare for a Franklin hearing. At a minimum, they will have to gather records, letters and other information on appellant's behalf and look into the prospect of рsychological testing and a risk assessment analysis. Not knowing what their investigative efforts might turn up, it would be unrealistic to expect them to make an offer of proof at this stage of the case. As other courts have done, we will simply remand the matter to the trial court to permit the parties the opportunity to present evidence bearing on the factors discussed in Franklin . (See, e.g., People v. Jones (2017)
The judgment is affirmed. The case is remanded pursuant to People v. Franklin (2016)
WE CONCUR:
O'LEARY, P. J.
ARONSON, J.
Notes
All further statutory references are to the Penal Code.
Respondent сontends appellant forfeited his right to challenge the kill zone instruction because he did not object to it in the trial court. However, since the propriety of the instruction bears on the underlying fairness of appellant's conviction for attempted murder, we will address the merits of his claim. (§ 1259 [notwithstanding the absence of an objection at trial, an appellate court may review any jury instruction that affects the defendant's substantial rights].)