People v. WindfieldPeople v. Windfield
OPINION
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed with directions.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant KeAndre Windfield.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Harquan Johnson.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., William M. Wood, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants again petitioned for review. This time, the Supreme Court granted review, deferring further action pending consideration and disposition of a related issue in People v. Canizales, which was then pending in the Supreme Court. Following the issuance of that opinion, the Supreme Court retransferred the cases back to this court with directions to vacate our opinion and to reconsider the cause in light of People v Canizales (2019) 7 Cal.5th 591, and People v. Perez (2016) 3 Cal.App.5th 612, 619. We again modified the judgment in accordance with the directions of the Supreme Court. (E055062, People v. Windfield et al., (2020) formerly published at 44 Cal.App.5th 196.) Defendants again petitioned for review.
On April 22, 2020, the Supreme Court again granted review, and again transferred the matter to our court with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 620 (Stats. 2017, ch. 682). The Supreme Court also de-published the decision. We now consider the matter in light of Senate Bill No. 620.
FACTS
Several months prior to June 2009, Marvin Moore and his best friend, Montoyea Smith, went to a Ramona Blocc Hustlas (RBH) gang party. Smith got into a fight with two brothers, Quinn and Lamar Wise, who were also members of RBH, and were Moore‘s cousins. Defendant Windfield, also an
On June 11, 2009, there was another RBH gathering at an apartment complex on East Jackson in Rialto. Ricky Peete, was there with three female companions. After midnight, Smith, a longtime friend of Peete‘s, drove up. Later, Moore pulled up and approached Smith. Smith was drunk and brought up the fight that had taken place a few months earlier, expressing anger that Moore had not stepped in the help him. The two men argued for a while about how Moore had failed him. Smith pulled out a hand gun and cocked it, stating he wanted to shoot up the Ramona gang‘s neighborhood.
After Smith displayed the gun, a van pulled up and parked across the street from where Smith and Moore were arguing. The driver was defendant Windfield‘s sister, Jontre Windfield (Jontre). Defendants Windfield and Johnson were in the van along with M. G. (the van‘s owner) and her children, and two other RBH gang members. When the van parked, defendant Windfield got out and began to cross the street. When Smith saw Windfield, he started yelling that Windfield had jumped him and pointed his gun at Windfield. Windfield walked at a fast pace back toward the van, as defendant Johnson got out of the vehicle. Smith chased both defendants around the van until the defendants ran away through an alley.
Jontre and M. G. exited the van and Jontre yelled at Smith that there were women and a child in the van. Smith pointed the gun in her face. Moore and Peete intervened, restraining Smith, and the women got back into the van and drove away as Smith walked back across the street. Jontre and M. G. then picked up the defendants and another of the men who had left through the alley. As she drove back to the apartment on East Ramona Drive, where she and the defendants lived, Jontre told defendants that Smith had pointed his gun at her and stated several times that Smith had to die. Windfield was angry at being chased away by Smith and said Smith had to be taken care of that night. After the van left East Jackson, Smith put his handgun in his car and calmed down.
Minutes later, when the van arrived at the Ramona Drive residence, everyone went inside except defendants. Johnson and Windfield each retrieved a firearm, took the keys to the van from its owner, M.G., and left, after Windfield said that they were returning to East Jackson.
Meanwhile, at the East Jackson apartment building, the police arrived in response to a call about a fight, so Moore told Smith to put his gun away. The people who were out on the street scattered at the arrival of police, leaving
While Peete and Smith were talking, Nikki heard the gate at the back of the building slam and went to investigate. She saw defendants Windfield and Johnson in the courtyard with guns and she told them they should leave, but they declined. Nikki walked back towards the front of the building while the defendants stayed in the back. Nikki told Peete what she had seen, but not Smith. When Smith started walking toward the back, Nikki and Peete tried to stop him, telling him to go home, but Smith said he needed to get his marijuana from the back. Peete went with him and they walked shoulder to shoulder.
As Smith pushed past Nikki and Peete, defendants stepped forward and began firing rapidly. Peete and Smith turned and stumbled into each other, and both fell. Peete was hit in the leg and Smith fell on top of him, bleeding from his midsection. As Peete and Smith lay on the ground, defendant Windfield stood over them, placed his gun to Smith‘s head, and fired a final shot. Then the defendants left.
After the defendants left, Peete, who had been shot once in the leg, got up, and left in the car that Jontre had lent him earlier. Nikki ran into the East Jackson apartment and told those present that defendants had run from the alley into the apartment courtyard and shot Smith. Moore left the East Jackson Street apartment complex and drove to the Windfields’ Ramona Drive residence to apologize to Windfield for Smith‘s behavior. Windfield said Smith was dead, and that “he had to go.” However, Windfield told Moore that it was Johnson who shot Smith, not him. Moore left.
M. G. was at the Ramona Drive apartment when the defendant‘s returned, approximately one-half hour after they had left with the firearms. Johnson asked M. G. to go to the Hustla Squad hood to drop his clothes off there, in order to implicate the Hustla Squad in the shooting.1
Afterwards, Windfield and Johnson discussed the shooting in the living room. Windfield said he shot all his bullets at Smith, and Johnson demonstrated how he walked over to Smith after he fell to the ground and shot him in his chest and face, holding the gun in both hands. During this conversation, Jontre got a call from Peete who told her he had been shot. Peete arrived at
The next day, at the Ramona Drive apartment, M. G. saw Windfield with Peete, who was on crutches, outside the apartment. Windfield told Peete they had not intended to shoot him. Back inside the apartment, Windfield told M. G. “he [Smith] had to go,” because he had Windfield running like a “bitch.”
Smith had been hit by at least 10 shots, six of which would have been fatal individually, including a shot fired approximately one-half inch from Smith‘s head. The cause of death was multiple gunshot wounds. Six bullets were recovered from Smith‘s body, all consistent with .25 caliber bullets. Peete had one bullet wound on the inside of his right calf. A criminalist who processed the scene hours after the shooting recovered seven .25 caliber casings and one nine millimeter casing.
Defendants were each charged with murder (
commission of counts 1 and 2, that each defendant personally and intentionally discharged a firearm causing death (
Following a trial by jury, defendants were convicted of all three counts. The jury set the degree of the murder count respecting Smith at first degree, and found the attempted murder of Peete was premeditated and deliberate. The jury found the defendants had personally used and intentionally discharged a firearm causing death (
Defendants appealed their convictions and sentences arguing:3 (1) that the admission of the preliminary hearing testimony of Nikki impinged on their rights to confrontation; (2) that their sentences were cruel and unusual given their youth; (3) the evidence of specific intent to kill was insufficient to support the conviction for attempted murder on count 2 based on a “kill zone” theory; (4) the court erred in failing to instruct the jury that provocation could reduce the attempted premeditated murder to attempted murder; (5) the firearm use and discharge allegations must be stricken as to count 2 because the amended information omitted such enhancements; and (6) clerical errors on the abstract of judgment required amendment. Separately, Johnson argued that (1) the court failed to pronounce sentence; and (2) he was entitled to additional presentence custody credits.
Following the first appeal, we affirmed the substantive convictions as to both defendants, but we directed the trial court to strike the allegation that a principal used and discharged a firearm as to count 2, affirmed the sentence as to Windfield, who was 18 at the time of the crimes, but ordered resentencing on Johnson, who was under the age of 18, pursuant to People v. Gutierrez (2014) 58 Cal.4th 1354, directed modification of Johnson‘s presentence credits, and amendment of the abstracts of judgment.
Defendants petitioned for review but their petitions were denied. However, on the Supreme Court‘s own motion as to Johnson, the Supreme Court granted review but deferred briefing pending consideration and disposition of a related issue in In re
Alatriste, S214652, In re Bonilla, S214960, and Franklin, S217699. After the decision in Franklin was filed, the matter as to Johnson was returned to us with directions to vacate our decision and reconsider the cause in light of Franklin. On September 28, 2016, we published our second opinion, republishing the portions of the opinion unaffected by the grant of review, but affirming in part and reversing in part as to Johnson. Both defendants again petitioned for review.4
On January 11, 2017, the California Supreme Court granted the second set of petitions for review, but deferred further action pending consideration and
Defendants again petitioned for review, and again the Supreme Court granted review. This time, the cause was retransferred to us for reconsideration in light of Senate
Bill No. 620, another law enacted after the defendants had been convicted of their crimes. We vacated our opinion pursuant to the Supreme Court‘s directions, and now re-issue the prior opinion with further modification in light of the enactment of Senate Bill No. 620, which modified
ISSUES AND DISCUSSION
1. Admission of Nikki‘s Preliminary Hearing Testimony
Both defendants argue that the court erred in admitting the audio and video recording of the preliminary hearing testimony of Nikki because the People failed to demonstrate she was unavailable, and failed to exercise due diligence to secure her attendance. We disagree.
We determine de novo whether due diligence was demonstrated. (People v. Bunyard (2009) 45 Cal.4th 836, 851; People v. Cromer (2001) 24 Cal.4th 889, 892, 893 (Cromer).)
a. Background
After testifying at the preliminary hearing, Nikki moved out of state with financial assistance provided by the District Attorney‘s office. The state to where she moved was where her mother and sister lived. She provided her address to a District Attorney Investigator, Christine Murillo, who spoke to Nikki by phone to confirm she had arrived safely. The investigator did not recontact Nikki until 2010.
In October 2010, Murillo checked various automated databases in both California and the state to which Nikki had moved and found no new
The investigator for the local prosecutor‘s office, in the state to which Nikki had relocated, checked with Nikki‘s relatives in that area; however, they had not seen or heard from Nikki for several weeks. That investigator for the local prosecutor‘s office went to the social service agency that provided money to Nikki while she was living in the place where she had relocated and was informed that she had failed to appear for her last couple of appointments with the agency to pick up funds it had for her.
In November 2010, Murrillo called Nikki‘s friend, Jasmine, who said that she had heard from Nikki three weeks before, but had no way to contact Nikki. Murillo contacted Jasmine a second time a few weeks later, but Jasmine reported that she had not heard from Nikki and had no contact information for her. Jasmine, again, told the investigator that she would have Nikki call the investigator if Nikki contacted her. Murillo also called Detective Williams, the case agent, in November 2010, and asked him to contact her if he heard anything on the street about Nikki‘s whereabouts. In January, April, and May 2011, Murillo reran Nikki through the available automated systems in California and the state to which Nikki had relocated.
Detective Williams had not tried to stay in contact with Nikki after she relocated, following the October 2009 preliminary hearing, but the prosecutor asked him to locate Nikki in the fall of 2010. Starting in September 2010, and for more than three months, he spoke to 50 or 60 people in Rialto and surrounding communities who may have known Nikki. Information from these people led the case agent to believe that Nikki might be local, so he notified the agencies in the areas surrounding Rialto and he talked to family members, all of whom denied knowing her whereabouts.
Within six or seven months before the hearing, the case agent searched all the places in San Bernardino and Riverside Counties where people said Nikki would reside or frequent on a regular basis. Six months before the hearing, the case agent contacted one of Nikki‘s aunts, but got no information. On and off since January 2011, the case agent had checked the Web site, Accurant, and Nikki‘s name came up at several locations linked to family members. Williams and another detective conducted stakeouts at those locations several times to see if they could determine Nikki‘s whereabouts. From three months before the hearing, Williams tried just about every day to contact Nikki by telephone and by contacting law enforcement agencies.
However, the local police did learn that Nikki had been in a vehicle that had been ticketed. Williams checked the license number of that vehicle and tracked it to a different state. Two weeks before the hearing, Williams asked that state‘s local law enforcement go the address of the registered owner of the car, but the owner claimed not to know Nikki. The trial court ultimately found the case agent‘s testimony to be credible.
The prosecutor explained its failure to contact Nikki between the time of her relocation and October 2010 was due to its belief they were on good terms with her and she had no criminal convictions then or at the time of trial. Because Nikki was in a place where she was surrounded by family members, the prosecutor believed her office would be able to contact Nikki.
The trial court found that Nikki was a critical witness, the only eyewitness to the crime. It noted that her testimony had been videotaped, as was common in gang cases, so it could be seen and heard, rather than merely read. The court concluded that the prosecution had established due diligence and permitted the People to play the videotape to the jury.
b. Discussion
On appeal, both defendants argue that the People did not employ “due diligence” in efforts to secure Nikki‘s attendance. We disagree.
Under both the federal and state Constitutions a criminal defendant is guaranteed the right to be confronted with the witnesses against him. (
In a criminal case, the prosecution bears the burden of showing that the witness is unavailable and that it made a “good-faith effort” (Barber v. Page (1968) 390 U.S. 719, 725), or, in the alternative, exercised reasonable or due diligence to obtain the witness‘s presence at trial. (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) In this state, the exception to the confrontation right for prior recorded testimony is codified in
“Due diligence” is not capable of a mechanical definition, but “connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.” (Cromer, supra, 24 Cal.4th at p. 904.) Relevant considerations include ‘“whether the search was timely began‘” [citation], the importance of the witness‘s testimony [citation], and whether leads were competently explored [citation].” (Ibid.) In determining whether the People have exercised due diligence, the court considers the timeliness of the search, the importance of the witness‘s testimony, and whether leads were competently explored. (Ibid.)
In People v. Fuiava (2012) 53 Cal.4th 622 (Fuiava), the trial court permitted the prosecution to introduce at trial the preliminary hearing testimony of a witness who was parked in a car at the time of the shooting, heard the gunshots, and saw the defendant and others running near the scene of the shooting. The homicide detective was tasked with locating the witness and serving a subpoena on her to procure her testimony at trial, and began the process of locating her two weeks before the date set for the trial. He checked her two last known addresses, interviewed
Based on this evidence, the reviewing court in Fuiava concluded that the trial court had properly determined that the prosecution had exercised reasonable diligence in attempting to locate the witness. (Fuiava, supra, 53 Cal.4th at p. 676.) Specifically, the Court of Appeal held that the detective began his search within a reasonable period of time before trial, and that it would have been unreasonable to impose upon the People an obligation to keep “periodic tabs” on every material witness in a criminal case. (Ibid.)
In reaching that conclusion, the court distinguished the holding of People v. Louis (1986) 42 Cal.3d 969, a case on which the defendants in this case have relied. In Louis, the California Supreme Court held that the People did not exercise due diligence because the prosecutor took no steps to prevent the absence of the witness. The defendants focus on the Supreme Court‘s observation in Louis that the prosecution had a duty to use reasonable means to prevent a witness from becoming absent. (Id., at p. 991.) However, in that case, the witness was known to be unreliable and his credibility was suspect. Ordinarily, however, the prosecution is not required, “absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures to stop the witness from disappearing.’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 342.)
Unlike the witness in Louis, Nikki had no criminal background and there was no indication she would disappear. While the prosecution actually assisted Nikki in leaving the state to move to another state where her mother and sister resided, there was no good cause to believe she would flee and every reason to believe she would be cooperative, where her credibility was not suspect and she was not considered unreliable at the time of her move. Further, the search for Nikki was timely undertaken and leads were competently explored.
The defendants criticize the detective‘s attempts to search for Nikki locally when he knew she had been relocated to another state. However, Detective Williams testified that information he gathered led him to believe that Nikki was local and people had told him that they had seen her in the area within six months before the hearing. This was consistent with Williams‘s testimony that after the preliminary hearing in Windfield‘s other criminal case in September 2010, law enforcement became concerned that Nikki had disappeared from where she had been relocated. It was reasonable for Williams to search for her locally based on the information available to him.
As to defendants’ suggestion that clinics and hospitals should have been contacted to determine if the child she was carrying at the time of the crimes received treatment at any of those facilities, the record shows that trial counsel for Johnson informed the court that that child had been taken from Nikki by the local Department of Children and Family Services and given to the child‘s father. The trial court correctly determined that the prosecution used due diligence in attempting to locate Nikki.
Nikki was unavailable as a witness and the parties against whom the former testimony was offered were parties to the action or proceeding and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which they had at the trial.
Even if we disagreed with the court‘s due-diligence determination, any error was harmless beyond a reasonable doubt. Although Nikki did not testify in person, her testimony at the preliminary hearing had been videotaped, and the tape was played for the jury. The jury was thus able to view her and make credibility determinations from her demeanor as recorded.
Additionally, other witnesses corroborated Nikki‘s testimony. M. G. saw both defendants with guns shortly before the shooting at the Ramona Street address and heard Windfield state they were going back to East Jackson because Smith had Windfield “running like a bitch,” and that Smith would be taken care of that night. A half hour later, the two defendants returned and Johnson asked M. G. to drive him to some apartments in Rialto to drop his clothes off, so as to make it look like someone in the “Hustler Squad” had killed Smith. Johnson admitted to M. G. that he and Windfield had shot Smith. She heard Windfield say he shot Smith at least four times and heard Johnson admit that he shot Smith in the face. The next day, M. G. was present when
While the trial court found that Nikki was a critical witness, important portions of her testimony were corroborated by other witnesses and there was ample evidence aside
from her testimony supporting the convictions despite the fact she was impeached with inconsistent statements she had made.
In any event, to the extent defendants assert that an extraordinary showing of due diligence was required because of her value to the prosecution (see People v. Herrera (2010) 49 Cal.4th 613, 622), such a showing was, in fact, made. There was no error.
2. Insufficiency of the Evidence of Intent to Kill Under the “Kill Zone” Theory.
Defendants contend that there was insufficient evidence to support a finding of specific intent to kill in connection with the attempted murder count. Specifically, they argue there was insufficient evidence that defendants created a kill zone by firing their guns and that the attempted murder victim was in that zone. We were directed by the Supreme Court to reconsider the matter in light of Canizales, supra, and after doing so, we conclude that the kill zone theory was correctly applied here.
It is well-settled that to prove the crime of attempted murder, the prosecution must establish “the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be “transferred” from one attempted murder victim to another under the transferred intent doctrine. (People v. Bland (2002) 28 Cal.4th 313, 327–328 (Bland).) However, the doctrine of transferred intent does not apply to attempted murder. (People v. Souza (2012) 54 Cal.4th 90, 120.)
In Bland, supra, the California Supreme Court expressly embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. Under that theory, the nature and scope of the attack directed at a primary victim may raise an inference that the defendant “intended to ensure harm to the primary victim by harming everyone in that victim‘s vicinity.” (Bland, supra, 28 Cal.4th. at p. 329, quoting Ford v. State (1993) 330 Md. 682 [625 A.2d 984, 1000].) The
The kill zone theory embraced by Bland, as it relates to multiple attempted murder charges, is necessarily defined by the nature and scope of the attack. (People v Perez (2010) 50 Cal.4th 222, 232.) It could lead to some anomalous results, such as in Perez, where a defendant was convicted of eight counts of attempted murder after firing a single shot at a group of police officers standing in close proximity with each other, and 60 feet away from defendant. There, the court held that the nature and scope of defendant‘s attack on the group had not created a zone of fatal harm around them and that Bland did not apply. (Perez, supra, 50 Cal.4th at p. 232.) “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.” (Ibid.) Thus, a single count of attempted murder could stand, but not eight counts. Of course, this did not mean that defendant‘s act of endangering the lives of the other individuals in the group would not go unpunished, where Perez was properly convicted of multiple counts of assault with a semiautomatic firearm on a peace officer.
We note that at least one single-bullet case that gave rise to two counts of attempted murder has been affirmed, where the defendant fired from behind the car in which a mother was driving and her baby was in a car seat directly behind her. (People v. Smith (2005) 37 Cal.4th 733, 736-737.) However, that case was not resolved by resorting to the “kill zone” theory.
In People v. McCloud (2012) 211 Cal.App.4th 788, the Court of Appeal held it was error to instruct on the kill zone theory of liability for attempted murder where the defendant was convicted of 46 counts of attempted murder after firing 10 shots from a semiautomatic handgun at a party where over 400 people were present. The reviewing court held that the kill zone theory is not an exception to the mental state requirement for attempted murder. It went on to hold that in order for the kill zone theory to support all 46 convictions, the record would have had to show that defendant tried to kill a targeted person by killing all 46 people in the area where the targeted individual was located. (Id., at p. 798.) At the appellate level, other courts have disagreed on whether the kill zone theory may be used where the method of killing is not designed to ensure the death of everyone in the kill zone. (See People v. Warner (2019) 35 Cal.App.5th 25, 35.) For this reason, the Supreme Court granted review on this case and others involving the “kill zone” theory.
The Supreme Court resolved these disagreements in Canizales, supra. In that case, codefendant Windfield (who is also a defendant in the present case) fired five shots in the general direction of two rival gang members, Pride and Bolden, from across the street, a distance of either 100 or 160 feet away. One of his bullets struck an innocent bystander who was near her parked car. The defendants were convicted of one count of murder and two counts of premeditated attempted murder as to Pride and Bolden.
The Supreme Court concluded “that the kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant‘s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target‘s death—around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. (Canizales, supra, 7 Cal.5th at p. 607.) In other words, the kill zone theory applies when the evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm. However, it reversed the attempted murder convictions as to both defendants because there was insufficient evidence to support an instruction on the kill zone theory.
Specifically, the court held that an instruction on the kill zone theory would have been warranted “only if there was substantial evidence in the record that, if believed by the jury, would support a reasonable inference that defendants intended to kill everyone within the ‘kill zone.’ To qualify, the record would need to include (1) evidence regarding the circumstances of defendants’ attack on Pride that would support a reasonable inference that defendants intentionally created a zone of fatal harm around him, and (2) evidence that Bolden was located within that zone of fatal harm. Taken together, such evidence would permit a finding that defendants harbored the requisite intent to kill Bolden because he was within the zone of fatal harm that defendants intended to create around Pride.” (Canizales, supra, 7 Cal.5th at pp. 609-610.)
For further guidance, Canizales instructs us that in determining the defendants’ intent to create a zone of fatal harm and the scope of any such
In Canizales, the Supreme Court concluded that the evidence was insufficient to support a finding that the defendants intended to create a zone of fatal harm. It noted that whether the inference could reasonably be drawn depended on whether the evidence that neither of the two attempted murder victims was hit by any of the shots fired by Windfield (who was the shooter in that case a year before his involvement in the current crimes). The defendants’ lack of proximity to one of the attempted murder victims, and the openness of the area in which the attack occurred, also diminished any inference that the defendants intended to create a zone of fatal harm.
The present case is distinguishable. Here, the multiple shots by each defendant from semi-automatic firearms were fired at close range against two people who were walking side-by-side in such close proximity that they fell into each other. Although Smith was the targeted individual, the manner of shooting multiple times into the pair of victims who were in close proximity, even in a pile at one point, with semiautomatic firearms fired from close range, gives rise to the strong inference that defendants intended to create a zone of fatal harm and that each defendant harbored the requisite intent to kill both the primary target and everyone within the zone of fatal harm. Windfield‘s statement to Peete that he did not mean to shoot him rings hollow where he, as well as Johnson, fired at Smith repeatedly even after Smith had fallen onto Peete.
Defendants assert that there is insufficient evidence to support a kill zone theory because “[Johnson] and . . . Windfield waited for [the murder victim] to appear, and when he did appear they fired at close range a number of well-targeted shots designed to hit and kill only [the murder victim].” However, the evidence does not support their theory. The defendants both shot at close range, firing multiple times at Smith who fell on top of Peete. Whether or not the defendants intended to shoot Peete, the two victims were in such close proximity to each other and the defendants, that the only reasonable inference is they intended to create a zone of fatal harm around Smith, and Peete was located within that zone.
We also disagree with defendants’ categorization of the shots as “well-targeted, designed to hit and kill only [the murder victim]” under the
Additionally, in her preliminary hearing testimony, Nikki said that when Johnson and Windfield approached the murder victim, the attempted murder victim was holding him tightly by having one of his arms over the murder victim‘s shoulder6 and after that, while Johnson and Windfield were shooting at the murder victim, the attempted murder victim was trying to cover or shield the murder victim, by standing between him and the defendants, and he moved his body as they moved, so they couldn‘t shoot the murder victim.
However “well-targeted” the defendants’ bullets might have been intended, when another person is standing very close to the targeted victim, or has placed himself between the shooters and the targeted victim, acting as a shield for the latter, we cannot imagine a more appropriate application of the kill zone theory, especially where, despite this, the shooters shot and actually hit that person. Contrary to defendants’ assertion, the fact that the murder victim was hit with nine bullets (aside from the “coup de gras” to the head) and the attempted murder victim with only one does not disprove that the attempted murder victim was in the line of fire.
Defendants’ attack Nikki‘s testimony that clearly established that the attempted murder victim was in the line of fire because, according to them, she “never gave a reliable description of precisely where the shooters were positioned when [the murder victim] was shot.” We disagree. She described, with great precision, where the attempted murder victim was in relation to the murder victim, and the attempted murder victim‘s testimony corroborated at least part of this description (i.e., he testified that he told the murder victim to hold up as the first shot or shots were fired and this was consistent with Nikki‘s description that he was holding back the murder victim, and also he testified that the two ran into each other as he was hit with the bullet, which was not inconsistent with her perception that he was shielding the murder victim during the shooting). In any event, on a sufficiency of the evidence claim, we do not discount a witness‘s testimony unless it is so improbable as to be unworthy of belief (People v. Thornton (1974) 11 Cal.3d 738, 784, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12), and Nikki‘s was not.
Defendants’ assertion that the method used—a hail of bullets from two different guns—was insufficient to support the finding of specific intent is unreasonable. The very fact that they created a hail of bullets at close range to two individuals who were either side by side, or with Peete in front of Smith, intending to kill Smith, is the very definition of creating a kill zone. Under these circumstances, the jury could reasonably infer that defendants “‘used a means to kill the [murder victim] that inevitably would result in the death of other victims within the zone of danger.‘” (People v Stone (2009) 46 Cal.4th 131, 138.)
As to the argument that the fact that Windfield apologized to the attempted murder victim, saying they did not intend to shoot him, defeated any inference the jury might draw that they intended to kill Peete, we note that the jury was perfectly free to reject this self-serving statement, and they apparently did so. If, as defendants assert, they were “being careful not to shoot” the attempted murder victim, they would not have shot while Peete was shielding Smith with his body, before shooting Smith.
The circumstances of the offense, the number of shots fired, the distance between the defendants and the alleged victims, and the proximity of the alleged victims to the primary target support application of the “kill zone” theory, even after the Supreme Court‘s clarification in Canizales. We conclude the evidence is sufficient to support the finding of specific intent to kill under the “kill zone” theory.
3. No Error in Failing to Instruct on Provocation as to Attempted Murder.
Defendants argue that the trial court‘s failure to instruct the jury sua sponte on provocation as to the charged attempted murder, similar to CALCRIM No. 522, requires reversal of the findings that the attempted murder was premeditated. We disagree.
Defendants recognize that two California Supreme Court decisions have held that there is no sua sponte duty to give CALCRIM No. 522. (People v. Rogers (2006) 39 Cal.4th 826, 880; People v. Middleton (1997) 52 Cal.App.4th 19, 32-33, [disapproved on other grounds in People v. Gonzales (2003) 31 Cal.4th 745, 752].) We are bound by Supreme Court decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) This resolves the question of whether the trial court erred in failing to instruct on provocation vis-à-vis the attempted murder of Peete sua sponte.
As a fallback, defendants claim that their trial counsels’ failure to request a CALCRIM No. 522-like instruction as to the charged attempted murder constitutes incompetency of counsel. In order to prevail, they must demonstrate a reasonable probability that, but for the failure to request this instruction, the outcome of this trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 691-694, 697-698.) That probability must be sufficient to undermine confidence in the verdicts. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
However, defendants cannot carry their burden. First, in order to show ineffective assistance of counsel, defendant must meet the two-prong standard under Strickland. It must be shown that (1) counsel‘s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) that the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at pp. 688, 693–696; People v. Johnson (2016) 62 Cal.4th 600, 653.) A successful claim of IAC must include both substandard performance and counsel‘s deficient performance was prejudicial. (People v. Hester (2000) 22 Cal.4th 290, 296.)
Here, deficient performance cannot be established because there was no evidence that the offense was less than that charged and there was no evidence of provocation such as would warrant an instruction on that point. (See People v. Breverman (1998) 19 Cal.4th 142, 154, citing People v. Hood (1969) 1 Cal.3d 444; People v. Noah (1971) 5 Cal.3d 469, 479; People v. Osuna (1969) 70 Cal.2d 759, 767.) Because there was no evidence to support an instruction on provocation, there was no duty on the part of counsel to request such an instruction. (See People v. Lewis (2001) 26 Cal.4th 334, 363; People v. Svarvas (1983) 142 Cal.App.3d 511, 526.)
Here, the only evidence in the record relating to the defendants’ mental states respecting the shooting of Peete is the evidence of Windfield‘s statement to Peete the day after the shooting, as reported by M.G., that they did not intend to shoot Peete. Had it not been for the defendants’ acts of shooting into a “kill zone,” this evidence might negate a specific intent to kill. But it also negates
Further, the defense emphasized that Peete was unable to identify his shooters. An instruction on provocation was inconsistent with the theory that someone else may have shot him. There was no ineffective assistance of counsel.
We also observe that in convicting defendants of first degree murder, the jury was instructed on provocation sufficient to reduce the degree of murder to second degree, but necessarily rejected that theory in convicting of first degree murder. This is true for either theory of first degree murder that was available to the jurors, whether premeditated and deliberate or lying in wait, as the latter, the jury was instructed, required “a state of mind equivalent to deliberation or premeditation.”
Because the murder and the attempted murder were committed simultaneously, by the same acts and under the same circumstances and were interconnected by the use of the kill zone theory as to the latter, it would not be possible for the jury to conclude that some provocation reduced the attempted murder to nondeliberate, nonpremeditated attempted murder, but did not also reduce the murder to second degree murder.
Absent evidence of provocation sufficient to warrant the giving of an instruction, there was no basis for an instruction permitting the jury to consider it, and counsel‘s failure to request such an instruction cannot be deemed to be deficient in any way. There was no error.
4. Firearm Enhancement Allegations as to the Attempted Murder.
Defendants argue it was error to impose the principal and personal firearm use enhancements, and the firearm-discharge-causing-great-bodily-injury enhancements as to count 2, because the amended information failed to allege the enhancements. We disagree.
a. Background
Count 2 of the first amended information correctly alleged that the defendants committed the crime of attempted murder, in violation of
On June 7, 2011, the seventh day of trial, when voir dire was still occurring, the prosecutor told the trial court that she was taking out the great bodily injury allegation relating to count 2, pursuant to
The following day, the prosecutor filed what was entitled the third amended information, although the record shows that no second amended information was ever filed. The so-called third amended information alleged, in connection with the charged attempted murder, that Johnson and Windfield had committed the crime of attempted murder as to Smith, rather than Peete, that the attempted murder was willful, deliberate and with premeditated.
It went on to allege “as to count(s) 1” that the defendants “personally and intentionally discharged a firearm . . . , which caused death to [Smith] within the meaning of
During arguments to the jury, on July 15, 2011, the prosecutor told the trial court that she wanted to make sure, by interlineations, that count 2 of the so-called third amended information “reflect[ed] Ricky Peete.” The trial court said it would make that order. The trial court indicated it had earlier selected and given the jury instructions including instructions requiring the jury to make findings on the firearm allegations as to count 2 consistent with the allegations that appeared in the first amended information. Although no such interlineations appear in the record before this court, we assume that the third amended information was interlineated to substitute Peete‘s name for Smith‘s, where the verdicts name Peete as the victim. Up to this point, all versions of the information had included enhancement allegations under
Regarding the attempted murder charge, as to both defendants, the sentencing court imposed an indeterminate term of 15 years to life, plus a term of 25 years to life for the enhancement pursuant to
b. Legal Principles
Johnson argues, and Windfield joins, that
The first amended information properly alleged the attempted murder of Peete, along with firearm enhancements related to that crime involving Peete. For unknown reasons, the document entitled the Third Amended Information replaced Peete‘s name with that of Smith. Johnson never objected or demurred to the third amended information on the ground it named the wrong victim, and he was previously aware of the firearm discharge allegations from the original information, and entered not guilty pleas to all counts and allegations.
The jury instructions relating to the crime of attempted murder referred to Peete, as were the firearm enhancements allegations pertaining to the attempted murder of Peete. Neither defendant objected to the instructions on the ground that no firearm enhancements were alleged as to him on count two. When the verdicts were read, neither defendant complained that the findings on the firearm enhancement as to count 2 were erroneous because they had not been charged with the enhancement allegations.
Defendants attempt to analogize the situation here to that in People v. Mancebo (2002) 27 Cal.4th 735 and its progeny fails. In Mancebo, the defendant was convicted of multiple sex offenses against two victims on separate occasions. He was charged with ten offenses and convicted and sentenced under the One Strike law,
The record reflects that all parties and the court understood that the last corrections suggested by the People had been made with the intention of modifying the allegations only to the extent that count 2 incorrectly named Smith, the murder victim, as the victim of the attempted murder count, and that enhancement language alleging that defendants personally and intentionally discharged the firearm causing death to Smith was intended to reflect the
Because the jury made a true finding of the enhancement allegation under
5. Sentencing
a. Windfield‘s Sentence as Cruel and Unusual
Windfield was sentenced in this case to three 25-year-to-life terms, plus a life term with a 15-year minimum which was run concurrently with the time imposed in another case of two 25-year-to-life terms, two 15-year-to-life terms plus 40 years. Windfield contends that this sentence violates Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455] (Miller).
Windfield was 18 years old when he committed the crimes in both cases and 21 when he was sentenced for both. He points out that his minimum parole eligibility extends beyond any life expectancy he could possibly have. In Miller, the United States Supreme Court held “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment‘s prohibition on ‘cruel and unusual punishments.‘” (Miller, supra, 567 U.S. 465 [132 S.Ct. at p. 2460]; see also Graham v. Florida (2010) 560 U.S. 48, 74 [130 S.Ct. 2011, 2030, 176 L.Ed.2d 825, 845], holding that a sentence of life without parole for a juvenile offender who did not commit homicide violated the Eighth Amendment.)
Windfield contends that scientific literature shows that the features of juveniles discussed in Miller extend to 18 year old‘s. However, we are bound
In People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 (Argeta), the appellate court rejected an identical argument, holding, “while ‘[d]rawing the line at 18 years of age is subject . . . to the objections always raised against categorical rules . . . [, it] is the point where society draws the line for many purposes between childhood and adulthood.’ [Citations.] Making an exception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point. We respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes, and conclude [that the defendant‘s] sentence is not cruel and/or unusual under Graham [v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011]], Miller, supra, 567 U.S. 460 [132 S.Ct. 2455], or [People v.] Caballero [(2012) 55 Cal.4th 262].”
Recently, in Gutierrez, supra, 58 Cal.4th at page 1380, the California Supreme Court endorsed the distinction drawn between those under the age of 18 at the time of the crime and those 18 or older. Based on these authorities, Windfield‘s sentence did not violate the Eighth Amendment.
Notwithstanding the stated judicial policy,
hearing in the 25th year of his incarceration, if the offender was under the age of 23 at the time of his offense. (
In Perez, supra, 3 Cal. App.5th 612, the Fourth District, Division Three agreed with the holding of Argeta, supra, and held that the lengthy indeterminate term did not violate the prohibition against cruel and unusual punishment under Miller and Gutierrez because the defendant was not a juvenile. But it also noted that the recent passage of Senate Bill No. 260, enacting
Because Windfield was under the age of 23 at the time of his offense, he will be eligible for parole in the 25th year of his term pursuant to
b. Johnsons‘s Sentence as Cruel and Unusual
Johnson, who was 17 when he committed these crimes, also received a sentence of 90 years to life. As he correctly points out, the California Supreme Court has held that a sentence of 110 years to life is the functional equivalent of a sentence of life without parole. (People v. Caballero (2012) 55 Cal.4th 262, 295 (Caballero); see also People v. Mendez (2010) 188 Cal.App.4th 47, 63 [a sentence of 84 years to life is the same]; Argeta, supra, 210 Cal.App.4th at p. 1482 [a term of at least 75 years in prison for a defendant who was 15 years old at the time of the crime “likely requires that he be in prison for the rest of his life“].) Johnson argues the sentencing court improperly imposed an indeterminate life sentence without individualized consideration of him as a person. In our original opinion, we agreed, and remand the matter for resentencing to give the trial court the opportunity to consider the Miller factors.
After we filed our original opinion, the Supreme Court granted review on its own motion and held it pending its decision in the then pending case of Franklin. After Franklin was decided, the Supreme Court retransferred the case to us for reconsideration in light of Franklin. We have done so.
In Miller, supra, the United States Supreme Court held that it is a violation of the
In Franklin, our Supreme Court held that the constitutional claim of cruel and unusual punishment, established by the United States Supreme Court in Miller and Graham had been mooted by the passage of Senate Bill No. 260 (2013–2014 Reg. Sess.) (Senate Bill No. 260), embodied in
In our original opinion, we commented that there was no sentencing memorandum submitted by counsel for Johnson, the probation report contained scant information about
In Franklin, the Supreme Court held that the defendant was not entitled to be resentenced, but, because it was unclear whether the defendant had sufficient opportunity to put on the record the kinds of information that
The same result is appropriate here. While defendant is not entitled to be resentenced, he is entitled to an opportunity to make a record of matters that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender‘s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. (Franklin, supra, 63 Cal.4th at p. 284.)
In our original opinion, we agreed that Johnson was entitled to resentencing under Gutierrez. We now hold, pursuant to the Supreme Court‘s direction, that while defendant is not entitled to resentencing, he is entitled to an
c. Applicability of Senate Bill No. 620, Amending Section 12022.53, subdivision (h)
Appellants were each sentenced to 25 to life for first degree murder (count 1), plus a consecutive term of 25 to life for the
At the time of appellants’ sentencing, imposition of the firearm enhancements was mandatory, and trial courts expressly lacked authority to strike firearm enhancements proven under
Because the judgment of conviction in appellants’ case was not yet final when Senate Bill No. 620 took effect, the new statutory amendment applies retroactively to appellant. (People v. Chavez (2018) 22 Cal.App.5th 663, 712; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507; see also, In re Estrada (1965) 63 Cal.2d 740.) Courts have held that “remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425; see also People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
“’ “Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court.” [Citations.]’ ”
(People v. Flores (2020) 9 Cal.5th 371, 431 (Flores).) Where the court was unaware of its discretionary powers, it can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant‘s record. (Id., at pp. 431-432.) In such circumstances, the appropriate remedy is to remand for resentencing unless the record “‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ [Citations.]” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
In Flores, the California Supreme Court concluded that the record clearly indicated the trial court would have reached the same conclusion even if it had been aware of its discretion. (Flores, supra, 9 Cal.5th at p. 432.) But we cannot be so sure here.
In the present case, on remand, the court will hear and consider information about the defendants’ youth pertinent to the youth offender statutes, which may or may not affect its discretion whether to impose one or all of the enhancements found true by the jury. Considering that multiple gun enhancements were found respecting each of the counts, it is not for us to say that a different result is not likely.
On remand, the court shall exercise its discretion whether to strike or dismiss any of the enhancements pursuant to
d. Correction of the Abstracts of Judgment
Defendants correctly point out that their abstracts incorrectly state that the dates of the offenses were 2011, when they were 2009. We will direct the trial court to correct the abstracts accordingly.
e. Pronouncement of Sentence on Johnson
Johnson argues he was not actually sentenced because the trial court, after indicating that his sentence would be the same as that to be imposed on Windfield, asked Johnson‘s counsel if he would waive the court‘s repeating the sentence that was actually imposed on Windfield. Johnson‘s counsel agreed, and the matter was left there. Defendant claims the trial court did not actually sentence him. We disagree.
As the People point out, “claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (People v. Scott (1994) 9 Cal.4th 331, 354.) Here, defendant was present when the sentence as to Windfield was pronounced, was advised that the same sentence was to be imposed on him, and when the court asked his counsel if he would waive the need to repeat the sentence as to himself, his counsel agreed. He has waived any error in the pronouncement of judgment.
Next, Johnson claims the sentencing court acted in excess of its authority by making a post-disposition correction to certain allegations as well as the sentence as to count 3. According to Johnson, as to counts 1 and 2, the court improperly struck the allegation pursuant to
f. Applicability of Proposition 57, Requiring a Juvenile Transfer Hearing, to Johnson‘s Sentence.
In the supplemental brief filed following the Supreme Court‘s second retransfer following publication of the Canizales opinion, Johnson posited a second issue not previously raised in the appeal. Specifically, he argues that insofar as this court‘s judgment is not final, he is entitled to retroactive application of Proposition 57, requiring a juvenile court transfer hearing for certain defendants who were juveniles at the time of the commission of their crimes. The People agree.
The California Supreme Court has determined that the provisions of Proposition 57 amending
We have already concluded that defendant Johnson is entitled to a limited remand for resentencing. However, before resentencing can take place, we direct a limited remand to the juvenile court to conduct a fitness hearing, as described in People v. Vela, supra, 11 Cal.App.5th at page 82. In conducting the transfer hearing, the juvenile court shall treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Johnson‘s cause to a court of criminal jurisdiction. (
g. Custody Credits for Johnson
The parties agree that the sentencing court shorted Johnson by one day in its calculation of his presentence custody credits, although the People argue the issue was waived. The clerk will be directed to correct the credits calculation when it prepares the amended abstract of judgment.
DISPOSITION
The convictions for both defendants are affirmed.
We affirm the judgment as to Windfield but remand the matter of sentencing: (1) for a hearing in the trial court at which both defendant and the People can make an accurate record of the defendant‘s characteristics and circumstances at the time of the offense; (2) to amend Windfield‘s abstract of judgment to show that the crimes were committed in 2009, not 2011, as his abstract currently states; and (3) to allow the trial court to exercise its discretion pursuant to
As to Johnson, we first direct a limited remand to the juvenile court to conduct a fitness hearing. In conducting the transfer hearing, the juvenile court shall treat the matter as though the
In the event Johnson is unfit for treatment in juvenile court, we also order a limited remand of Johnson‘s sentence to provide an opportunity to present
CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.