People v. Alcarez CA2/4 ( 2014 )

Filed 1/8/14 P. v. Alcarez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B242197
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA072796)
v.
ERNESTO ALCAREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Stephen A. Marcus, Judge. Remanded for resentencing; Affirmed as modified.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle
and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Defendant Ernesto Alcarez appeals from the judgment entered on his
convictions for one count of murder for the shooting death of Cheryl Green and
seven counts of attempted murder. Alcarez was convicted as an aider and abettor
under the natural and probable consequences doctrine, based on his role as the
lookout assisting his fellow gang member, Jonathan Fajardo, who shot multiple
rounds at a group of African-American men, women and children who were
socializing in front of a residence in the Hispanic gang’s territory.
Alcarez contends that the trial court gave the jury a misleading instruction
regarding the “kill zone” theory, which theory permits a jury to find a defendant
guilty of attempted murder where it finds that the defendant intended to kill
everyone in the vicinity of a primary target in order to ensure that the primary
target was killed. He contends that the particular instruction given, CALJIC No.
8.66.1, permitted the jury to find him guilty of attempted murder on an aiding and
abetting theory merely because Fajardo exposed the victims to a risk of harm, and
as phrased the instruction did not require a finding that Fajardo intended to kill the
victims. He further contends that the phrase “kill zone” used in the instruction is a
provocative and unnecessary description that is impermissibly argumentative. We
reject both contentions and find no error in the trial court’s “kill zone” instruction.
Alcarez also challenges his sentence, arguing that the imposition of eight
consecutive enhancement terms pursuant to section 12022.53, subdivision (d),1
totaling more than 200 years to life, violates the prohibition against cruel and
unusual punishment. He further contends that his trial counsel rendered ineffective
assistance in failing to object to the sentence on this ground. We conclude that his
1
All undesignated code references are to the Penal Code.
2
sentence does not constitute cruel and unusual punishment, and thus his trial
counsel did not render ineffective assistance by failing to so object.
Alcarez further contends, and the Attorney General concedes, that the
abstract of judgment erroneously states that Alcarez was convicted of attempted
willful, deliberate, and premeditated murder in counts 2 through 8. Although the
jury found Alcarez guilty of seven counts of attempted murder, it found not true
the allegations that the offenses were willful, deliberate, and premeditated.
Therefore, we order the abstract of judgment to be corrected to delete the notations
suggesting that the attempted murders in counts 2 through 8 were willful,
deliberate and premeditated. We further order the abstract of judgment to be
corrected to state the $150 victim restitution fine owed to Charlene Lovette.
Finally, we conclude that the trial court imposed an illegal sentence when it
imposed one-third the midterm for each of the attempted murder counts (counts 2
through 8) consecutive to the indeterminate term for the murder count (count 1).
Instead, the court should have chosen a determinate term for one of the attempted
murder counts from the triad of available sentences for that crime (5, 7, or 9 years
(§ 664)) plus applicable enhancements, and then, consecutive to that term, imposed
terms of one-third the midterm (plus enhancements) for the remaining attempted
murder counts. The court then should have combined the sentences on those
counts with the indeterminate term (plus the applicable enhancement) for the
murder count (count 1) to reach a total aggregate sentence, with the determinate
sentence on the attempted murder counts to be served first. We therefore remand
for resentencing, but otherwise affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
Procedural History
Alcarez was charged in count 1 with the murder of Cheryl Green. Counts 2
through 8 alleged attempted murder of Nicole Buckner, Isadream Sims, Donald
Rucker, Andre West, Anthony Buckner, Necharda Jones, and Kenny Davis.2
After an eight-day jury trial, the jury returned a verdict finding Alcarez
guilty as an aider and abettor of second degree murder as to count 1 and attempted
murder as to counts 2 through 8. As to all counts the jury found true the alleged
firearm enhancements (§§ 12022.53, subds. (b), (c), (d) and (e)), and a gang
enhancement (§ 186.22, subd. (b)(1)(C)). The jury found that none of the
attempted murders were willful, deliberate, and premeditated, but found that these
offenses were hate crimes and that Alcarez committed them voluntarily and in
concert with another and others (§ 422.75, subd. (b)).
The court sentenced Alcarez to a total of 238 years, four months to life in
state prison. As to count 1, Alcarez was sentenced to 15 years to life, plus 25 years
pursuant to section 12022.53, subdivision (d), to run consecutively, for a total of 40
years to life. As to counts 2 through 8, Alcarez was sentenced for each count to
one-third the midterm of seven years for two years, four months, plus one year
pursuant to section 422.75, subdivision (b), plus 25 years to life pursuant to section
12022.53, subdivision (d), to run consecutively, for a total of 28 years, four months
to life as to each count. The remaining firearm and gang enhancements were
stayed pursuant to section 654. The court ordered Alcarez to pay a $320 court
security fee (§ 1465.8, subd. (a)(1)), a $240 criminal conviction assessment (Gov.
Code, § 70373), a $7,029.71 restitution fine ($6,879.71 to the State Victim
2
Codefendant Fajardo was charged in the same information, but was tried
separately.
4
Compensation Board and $150 to Charlene Lovette) (§ 1202.4, subd. (f)), and an
$8,000 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed an equal
parole revocation fine (§ 1202.45). Alcarez was awarded 2,310 days of
presentence custody credit.
Pertinent Evidence at Trial3
A. Victim Testimony
On the afternoon of December 15, 2006, a group of eight African-Americans
-- Anthony Buckner, his sister Nicole Buckner, his female cousins Necharda Jones
and Isadream Sims, his five-year old cousin, Kenny Davis, Nicole’s boyfriend
Donald Rucker, Necharda’s boyfriend Andre West, and their 14-year old friend
Cheryl Green -- were socializing outside Kenny’s house, standing quite close
together in the driveway between Kenny’s house and the neighbor’s house. For
sake of clarity, we hereafter refer to the victims by their first names.
Necharda testified that just prior to the shooting she saw a gray Toyota
Corolla drive by. A young Hispanic male who was driving stopped the car briefly
in front of the driveway of Kenny’s house, and made a pointing gesture with his
index finger to two men who were approaching, as if he was pointing out the group
standing in the driveway. It appeared as if he was directing the two men who were
approaching to do something.
As the two men approached, Necharda saw that one of them (later identified
as Fajardo) had a large revolver in his hand, and the second man appeared to be
acting as the lookout. The shooter aimed his gun at the area where the members of
the group were all standing quite close together. Necharda stated that the bullet
could have hit any of them because the gun was aimed at all of them, but Cheryl
3
The defense presented no witnesses or evidence at trial.
5
was hit because she happened to be the closest to the shooter. Necharda ducked
behind the car in the driveway and grabbed her little brother, Kenny, and while
they took cover there, Necharda heard five to seven more shots.
Anthony testified that at the time the two men approached the group, he was
kneeling on the ground, showing Kenny how to play a game on his cell phone.
When the two men got to within several feet, Fajardo pointed a .44 caliber revolver
at Anthony and Kenny, with the other man standing several feet behind him.
Anthony heard the gun click twice while Fajardo was pointing it at him and Kenny,
but the gun did not fire. Anthony threw Kenny under the car in the driveway.
Then he saw Fajardo move his arm to the right and point the gun at Cheryl, and
Anthony heard shots while the gun was pointed in her direction. Anthony took off
running towards the back of the house to take cover, and as he, Nicole, and Donald
reached the fence at the back of the driveway, he saw Fajardo point the gun
towards them and heard three or four more gunshots. While he helped Nicole over
the fence, he saw that her pinkie was hanging off, and that Donald had two bullet
wounds to his upper body.
After a few minutes he returned to the front of the house and found Cheryl
lying on the ground, dying, with a bullet wound near her heart. He drove her to the
hospital where she was pronounced dead. Anthony testified that Isadream also had
a graze wound on the top of her head.
Nicole testified that she saw the shooter point the gun at Anthony and
Kenny. She heard it jam, and then she started running to the back of the fence.
Seconds later she heard gunfire. She thought she heard five or six shots fired.
Donald testified that when the shooter approached, the group was all close
together. The shooter pointed his gun at Cheryl, and then once she was hit, he
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pointed the gun to the rest of the group as they ran towards the back of the house,
and Donald heard five or six gunshots.
B. Pertinent Details of Police Investigation
1. Alcarez Confession
Alcarez’s videotaped confession was played for the jury and a transcript
admitted into evidence. He acknowledged that he had been a member of the 204th
Street Gang for almost four years. Alcarez stated that a week before the Cheryl
Green shooting, “the Black people, they shot some Mexican.” This made his gang
“mad” and led them to tag their territory with anti-African-American graffiti such
as “NK,” which a gang expert at trial testified stood for “Nigger Killer.”
After initially denying involvement in the Cheryl Green shooting, Alcarez
admitted to being involved. He stated that he and some friends, including Fajardo,
were outside a market on the corner of Harvard Boulevard and 205th Street, when
an African-American man in a green Chevy Tahoe drove by and brandished a gun.
Alcarez stated that Fajardo left to get a gun and came back, although later in the
interview Alcarez stated that initially he was not sure that Fajardo had the gun,
because everyone ran in a different direction and he did not know who had the gun
or where they went to get it. Fajardo and Alcarez then walked to 206th Street,
where they saw an African-American man; Alcarez realized Fajardo had the gun
when they “were almost there.” Fajardo told Alcarez to watch his back and
Alcarez stood next to him and acted as the lookout, with a broken bottle in his
hand. Fajardo fired two shots and then he and Alcarez ran away. Alcarez stated
that he was not sure if Fajardo shot at the same man who had brandished the gun in
the green Tahoe, and Alcarez did not see the Tahoe at the location of the shooting.
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2. Gang Evidence
Los Angeles Police Sergeant Daniel Robbins testified as an expert on the
204th Street Gang. He identified Alcarez and Fajardo as known members. He
indicated that the shooting of Cheryl Green took place in 204th Street Gang
territory. The gang was known to be antagonistic towards African-American
people in general, and the gang increasingly had targeted African-American men,
women and children in their territory with racist graffiti and violence. This trend
was precipitated by the change in demographics in the area, as more African-
Americans moved into the mostly Hispanic neighborhood.
Pertinent Jury Instructions
As to the attempted murder counts, the jury was first instructed with
CALJIC No. 8.66, which provides the elements of attempted murder, including “a
specific intent to kill unlawfully another human being.” The jury was also
instructed with CALJIC No. 8.66.1, the “kill zone” theory, which provides as
follows: “A person who primarily intends to kill one person, may also
concurrently intend to kill other persons within a particular zone of risk. This zone
of risk is termed the ‘kill zone.’ The intent is concurrent when the nature and
scope of the attack, while directed at a primary victim, are such that it is reasonable
to infer the perpetrator intended kill the primary victim by killing everyone in that
victim’s vicinity. [¶] Whether a perpetrator actually intended to kill the victim,
either as a primary target or as someone within a [‘kill zone’] [zone of risk] is an
issue to be decided by you.” Defense counsel did not object to the instruction
being given.
The jury was also instructed with CALJIC No. 1.01, which instructed the
jury not to single out any particular sentence, point or instruction and ignore the
8
others, and instead to “[c]onsider the instructions as a whole and each in light of all
the others.”
Closing Arguments
The prosecution argued that the evidence demonstrated that on the day of the
Cheryl Green shooting, Fajardo and Alcarez wanted to kill any African-American
person that they found in their gang’s territory, not only because of the gang’s
overall antipathy to African-Americans but also because they were particularly
incensed because of an incident the week earlier where an African-American had
killed a Hispanic and because of the incident earlier that same day where an
African-American man in a truck had brandished a gun at them. The prosecution
argued that Fajardo and Alcarez’s fellow gang member specifically instructed them
to target the group of eight African-Americans, merely because they were African-
American.
The prosecution further argued that Fajardo intended to kill each member of
the group of eight people. It argued that after pointing the gun at Kenny and
Anthony and having the gun jam when he pulled the trigger, and then successfully
shooting Cheryl in the chest, Fajardo pointed the gun and shot at everyone else
who was trapped close together in small space between two houses, trying to flee.
The prosecutor noted that witnesses testified that Fajardo fired five or six shots
from a close range at the fleeing victims.
The prosecution further argued as follows with respect to the “kill zone”
theory: “[W]ith regard to attempted murder, the law really, really sort of describes
the kind of case you’re dealing with here. We’re dealing with a situation in which
the defendant and his companion emptied a gun on a crowded group of people.
The instruction 8.66.1 indicates that, when the nature and scope of the attack, while
9
directed at a primary victim, are such that it’s reasonable to infer the perpetrator
intended to kill the primary victim by killing everyone in that victim’s vicinity,
then it is attempted murder as to all of them. [¶] So you don’t necessarily have to
count bullets and count the number of victims who are out there. You don’t have
to think about exactly how many feet apart these young people were. You know, it
can’t be many feet apart based upon the distance between the houses. But
essentially, if the actions of the defendant and [Fajardo] were such that, in an
attempt to kill members of that group, they sprayed the entire group to annihilate
the whole group, it can be attempted murder as to all of them.”
The defense argued that Alcarez had no knowledge that Fajardo intended to
kill the members of the African-American group, and that the evidence showed
only that Alcarez was standing near Fajardo during the shooting and did not take
an active part.
DISCUSSION
I. “Kill Zone” Jury Instruction
Alcarez contends that the trial court erred in instructing the jury with
CALJIC No. 8.66.1, the “kill zone” instruction, because the language of the
instruction is misleading in that it suggests that a defendant can be convicted of
attempted murder merely by subjecting individuals other than his intended target to
a risk of fatal injury, and thus “lends itself to an overly broad interpretation of the
crime of attempted murder.” Alcarez does not contend that the kill zone theory is
inapplicable to the facts adduced at trial, but rather argues that CALJIC No. 8.66.1
misstates the kill zone theory.
The defense did not object below to the jury being instructed with CALJIC
No. 8.66.1, and thus the Attorney General contends that the challenge to this
10
instruction was not preserved for appeal. “‘Generally, a party may not complain
on appeal that an instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested appropriate clarifying or
amplifying language.’ [Citation.] But that rule does not apply when . . . the trial
court gives an instruction that is an incorrect statement of the law.” (People v.
Hudson (2006) 38 Cal.4th 1002, 1011-1012.) To the extent Alcarez’s argument
rests upon the contention that CALJIC No. 8.66.1 incorrectly states the law, his
failure to object does not result in a forfeiture of the issue on appeal, and thus we
consider the merits of his contention. (Ibid.)
In evaluating a claim that the jury could have misconstrued an instruction,
we consider whether there is a reasonable likelihood that the jury applied the
challenged instruction in a way that violates the Constitution. (People v. Raley
(1992) 2 Cal.4th 870, 901.) “[W]e view the challenged instruction in the context
of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.”
(People v. Houston (2012) 54 Cal.4th 1186, 1229 (Houston); see People v.
Carrington (2009) 47 Cal.4th 145, 192 [“‘[T]he correctness of jury instructions is
to be determined from the entire charge of the court, not from a consideration of
parts of an instruction or from a particular instruction.’ [Citations.]”].) “A
defendant challenging an instruction as being subject to erroneous interpretation by
the jury must demonstrate a reasonable likelihood that the jury understood the
instruction in the way asserted by the defendant.” (People v. Cross (2008) 45
Cal.4th 58, 67-68.) “We credit jurors with intelligence and common sense
[citation] and do not assume that these virtues will abandon them when presented
with a court’s instructions.” (People v. Coddington (2000) 23 Cal.4th 529, 594,
overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.)
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A. Attempted Murder Law
“Attempted murder requires the specific intent to kill and the commission of
a direct but ineffectual act toward accomplishing the intended killing. [Citation.]”
(People v. Ervine (2009) 47 Cal.4th 745, 785; see Houston, supra, 54 Cal.4th at p.
1217.) In People v. Bland (2002) 28 Cal.4th 313 (Bland), the court concluded that
the doctrine of transferred intent applies to unintended killings, but not to persons
not killed. (Id. at p. 317.) “To be guilty of attempted murder, the defendant must
intend to kill the alleged victim, not someone else. The defendant’s mental state
must be examined as to each alleged attempted murder victim.” (Id. at p. 328; see
People v. Perez (2010) 50 Cal.4th 222, 230 (Perez).) However, “this is true
whether the alleged victim was particularly targeted or randomly chosen.” (People
v. Stone (2009) 46 Cal.4th 131, 141 (Stone).) Even though attempted murder
requires a specific intent to kill, the defendant need only harbor “‘the intent to kill
a human being, not a particular human being.’” (Perez, supra, 50 Cal.4th at p.
230.) Thus, in Stone, the California Supreme Court held that “a person who shoots
into a group of people, intending to kill one of the group, but not knowing or
caring which one, [can] be convicted of attempted murder.” (Stone, supra, 46
Cal.4th at p. 134.) “An indiscriminate would-be killer is just as culpable as one
who targets a specific person.” (Id. at p. 140; People v. Amperano (2011) 199
Cal.App.4th 336, 341 [“‘[A] person who intends to kill can be guilty of attempted
murder even if the person has no specific target in mind.’”].) Under this reasoning,
“a defendant can be convicted of several attempted murders if he intended to kill
several people, even if there were no particular people he intended to kill.”
(People v. McCloud (2012) 211 Cal.App.4th 788, 798-799, review denied, Mar.
13, 2013 (McCloud).)
12
In addition, Bland clarified that a person who shoots at a group of people
may be punished for the actions toward everyone in the group even if that person
primarily targeted only one of them. (Bland, supra, 28 Cal.4th at p. 329.) The
person might still be guilty of attempted murder of everyone in the group on a
theory of “concurrent intent.” (Ibid.) Under the concurrent intent doctrine, the
requisite mental state for attempted murder can be inferred “‘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.’” (Ibid.) Examples of this “kill zone” theory
enunciated in Bland include placing a bomb on a plane when the desire is to kill a
particular person on board or firing an automatic weapon at a group of people on
the street motivated by the desire to kill one particular person in the group. (Id. at
p. 330.)
B. CALJIC No. 8.66.1 “Kill Zone” Instruction As Misleading
In this case, the trial court instructed the jury with CALJIC No. 8.66.1,
which describes the “kill zone” theory as follows: “A person who primarily
intends to kill one person, may also concurrently intend to kill other persons within
a particular zone of risk. This zone of risk is termed the ‘kill zone.’ The intent is
concurrent when the nature and scope of the attack, while directed at a primary
victim, are such that it is reasonable to infer the perpetrator intended to kill the
primary victim by killing everyone in that victim’s vicinity. [¶] Whether a
perpetrator actually intended to kill the victim, either as a primary target or as
someone within a [‘kill zone’] [zone of risk] is an issue to be decided by you.”
Alcarez contends that CALJIC No. 8.66.1 misstates the kill zone theory of
culpability by suggesting that a defendant who subjects individuals other than his
13
primary target to a risk of fatal injury may be found guilty of attempted murder,
even if he did not intend to kill those individuals. Alcarez bases this argument on
dicta in McCloud, a relatively recent decision by our Division 1 colleagues.
(McCloud, supra, 211 Cal.App.4th 788.)
In McCloud, two defendants fired 10 shots from a nine-millimeter
semiautomatic handgun into a packed party inside a lodge where over 400 people
were present. Three bullets hit three victims, killing two and injuring another, and
the last seven bullets hit no one. (McCloud, supra, 211 Cal.App.4th at pp. 791,
793-794.) The defendants were each convicted of two counts of second degree
murder, and one of them (Stringer) was convicted of 46 counts of attempted
murder. (Id. at p. 791.) The jury was instructed with CALJIC No. 8.66.1, and the
prosecution argued in its closing statement that “‘[t]he kill zone says that anyone
who is in the line of fire, anyone who could have potentially been hit is a victim of
that attempted murder. . . . You take a gun, you sho[o]t at a party, you are not sure
who at that party is going to get hit, you can still get the kill zone. You are still
endangering every single person in that line of fire.’ . . . ‘All of those kids are all
in the zone of risk. All of them are potential and actual victims in this case.’” (Id.
at p. 801.)
The appellate court found that the prosecution’s argument was based on an
erroneous conception of the kill zone theory, because (1) the prosecution did not
argue there was a primary target, and (2) the prosecution’s argument “assumed that
individuals who are merely endangered or put ‘at risk’ or located within ‘the zone
of risk’ are attempted murder victims on the kill zone theory. That is incorrect as a
matter of law. The prosecutor never attempted to argue that Stringer . . .
specifically intended to kill every single person in each of the putative kill zones,
as the kill zone theory would actually require.” (McCloud, supra, 211 Cal.App.4th
14at p. 802.) The court thus found that the record did not contain substantial
evidence to support application of the kill zone theory to that case, and found that
the attempted murder counts had to be reversed. (Id. at pp. 802, 804.)
Having stated its holding, the court further “note[d] that the language of
CALJIC No. 8.66.1, the pattern instruction that was given to the jury concerning
the kill zone theory, directly lends itself to the prosecutor’s incorrect statement of
the theory, so the instruction should probably be revised. . . . The instruction’s
repeated references to a ‘zone of risk’ are misleading and have no basis in the
law—neither the phrase ‘zone of risk’ nor even the word ‘risk’ appears anywhere
in Bland. . . . By referring repeatedly to a ‘zone of risk,’ the instruction suggests to
the jury that a defendant can create a kill zone merely by subjecting individuals
other than the primary target to a risk of fatal injury. As we have already
explained, that is not correct.” (McCloud, supra, 211 Cal.App.4th at p. 802, fn. 7.)
Unlike the prosecutor in McCloud, who did not argue that the defendant
specifically intended to kill every person in the asserted “kill zone” and instead
essentially suggested that recklessness as to who might be shot was sufficient for
attempted murder (McCloud, supra, 211 Cal.App.4th at p. 802), the prosecution in
the instant case argued that Alcarez and Fajardo specifically intended to kill each
of the eight people in the group. Further, the prosecution advised the jury that
CALJIC No. 8.66.1 “indicates that, when the nature and scope of the attack, while
directed at a primary victim, are such that it’s reasonable to infer the perpetrator
intended to kill the primary victim by killing everyone in that victim’s vicinity,
then it is attempted murder as to all of them. [¶] . . . [I]f the actions of the
defendant and [Fajardo] were such that, in an attempt to kill members of that
group, they sprayed the entire group to annihilate the whole group, it can be
attempted murder as to all of them.” Therefore, the prosecutor plainly stated that
15
in order to find Alcarez guilty of all the attempted murder charges, the jury had to
find that he (or at least Fajardo, whom he was aiding and abetting) intended to
“annihilate the whole group.” Thus, there was no issue in the instant case of the
prosecution compounding the effects of any ambiguous or misleading language in
CALJIC No. 8.66.1 through misleading closing arguments.
Further, we conclude that the use of the phrase “zone of risk” in CALJIC
No. 8.66.1 cannot be viewed in isolation, but rather must be construed in light of
the overall instruction of which the phrase is a part. (People v. Ledesma (2006) 39
Cal.4th 641, 718.) The instruction expressly stated, “A person who primarily
intends to kill one person, may also concurrently intend to kill other persons within
a particular zone of risk.” It further indicated that the defendant must intend to kill
the alleged victim, either as a primary target or as someone within a kill zone.
Viewed as a whole, the instruction adequately imparted the requirement that the
jury find that Fajardo harbored a specific intent to kill in order to find Alcarez
guilty of attempted murder as an aider and abettor. A reasonable jury would not
have construed CALJIC No. 8.66.1 to mean that it could find Alcarez committed
attempted murder merely because he and Fajardo placed members of the group at
risk of harm.
Moreover, the trial court properly instructed the jury on the elements of
attempted murder with CALJIC No. 8.66, which included the specific intent
requirement, as well as instructed it to consider the instructions as a whole and in
light of all the others. We presume the jurors understood and followed the trial
court’s instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) A
reasonable jury, considering these instructions in conjunction with CALJIC No.
8.66.1, would not conclude that it could find Alcarez guilty of attempted murder
merely based on the conclusion that he or the actual perpetrator exposed the
16
members of the group to a risk of harm. (Cf. People v. Bragg (2008) 161
Cal.App.4th 1385, 1395-1396 [finding that jury was not misled by use of phrase
“zone of harm” used in the analogous “kill zone” instruction CALCRIM No. 600,
which provided that “‘[a] person may intend to kill a specific victim or victims and
at the same time intend to kill anyone in a particular zone of harm or “kill
zone”’”]; People v. Campos (2007) 156 Cal.App.4th 1228, 1243 [finding no
possibility that the jury could have misapplied CALCRIM No. 600 so as to fail to
find that defendant had the specific intent to kill the victim, in part where the jury
was instructed on the elements of attempted murder, including the requirement of
the specific intent to murder the victim].)
In sum, we reject Alcarez’s contention that CALJIC No. 8.66.1 permitted the
jury to find him guilty of attempted murder without finding that he, or at least
Fajardo, had the specific intent to murder the seven victims who survived the
shooting.
C. CALJIC No. 8.66.1 As Argumentative
Alcarez also argues that CALJIC No. 8.66.1 is impermissibly argumentative
because it includes the phrase “kill zone.” He likens the phrase to the
inflammatory phrases “execution style” or “serial killer” and suggests that its use
in the instruction is gratuitous and unnecessary.
Alcarez does not cite any favorable authority to support his contention. The
only court to consider the issue in a published opinion, Campos, supra, 156
Cal.App.4th 1228, soundly rejected the same argument with respect to CALCRIM
No. 600, an analogous kill zone instruction, finding as follows: “An instruction is
argumentative when it recites facts drawn from the evidence in such a manner as to
constitute argument to the jury in the guise of a statement of law. [Citation.] ‘A
17
jury instruction is [also] argumentative when it is “‘of such a character as to invite
the jury to draw inferences favorable to one of the parties from specified items of
evidence.’ [Citations.]”’ [Citation.] [¶] CALCRIM No. 600 merely employs a
term, ‘kill zone,’ which was coined by our Supreme Court in Bland and referred to
in later California Supreme Court cases. [Citation.] It does not invite inferences
favorable to either party and does not integrate facts of this case as an argument to
the jury. Other disparaging terms, including ‘flight’ (CALJIC No. 2.52),
‘suppress[ion] of evidence’ (CALJIC No. 2.06) and ‘consciousness of guilt’
(CALJIC No. 2.03) have been used in approved, longstanding CALJIC
instructions. We see nothing argumentative in this instruction.” (Campos, supra,
156 Cal.App.4th at p. 1244.) We agree with Campos that the phrase “kill zone” is
not argumentative and it is not reasonably possible that the phrase would cause the
jury to be biased against Alcarez.
II. Cruel and Unusual Punishment
Alcarez contends that the imposition of eight consecutive firearm
enhancement terms of 25 years to life, pursuant to section 12022.53 subdivision
(d), constituted cruel and unusual punishment. A punishment is excessive in
violation of the Eighth Amendment to the federal Constitution if it is grossly
disproportionate compared to the severity of the crime. (People v. Dillon (1983)
34 Cal.3d 441, 450, 478.)
Alcarez’s cruel and unusual punishment claim is forfeited because he failed
to advance it below. (People v. Collins (2004) 115 Cal.App.4th 137, 156; see
People v. Norman (2003) 109 Cal.App.4th 221, 229 [cruel and unusual punishment
arguments require examination of the offense and the offender and thus the issue
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must be raised in the trial court]; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
Even if the claim was not forfeited, however, we would find it meritless.
Section 12022.53 subdivision (d) provides, in relevant part, that a person
who personally and intentionally discharges a firearm and proximately causes great
bodily injury or death, to any person other than an accomplice, shall be punished
by an additional and consecutive term of imprisonment in the state prison for 25
years to life. Further, “[s]ubdivision (e) of section 12022.53 authorizes imposition
of the enhanced sentence on an aider and abettor if a criminal street gang allegation
is pled and proved, as it was here.” (People v. Gonzales (2001) 87 Cal.App.4th 1,
11-12 (Gonzales).) Section 12022.53, subdivision (e) “is expressly drafted to
extend the enhancement for gun use in any enumerated serious felony to gang
members who aid and abet that offense in furtherance of the objectives of a
criminal street gang.” (Id. at p. 15.) “Life sentences pass constitutional muster for
those convicted of aiding and abetting murder, and for those guilty of felony
murder who did not intend to kill. [Citations.] Additionally, a sentence
enhancement of 25 years to life is not disproportionate to a violation of Penal Code
section 12022.53; the Legislature has determined that a significant increase in
punishment is necessary and appropriate to protect citizens and deter violent
crime.” (People v. Em (2009) 171 Cal.App.4th 964, 972-973.) Alcarez concedes
that he met the conditions under subdivisions (d) and (e) of section 12022.53 and
thus was subject to the imposition of consecutive enhancements of 25 years to life
under those provisions.
Alcarez first contends that 25-year-to-life firearm enhancement under
section 12022.53 is facially unconstitutional because the statute “does not
recognize significant gradations of culpability depending on the severity of the
current offense, fails to take mitigating factors into consideration, and arbitrarily
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imposes severe punishment in cases involving criminal use of a gun as compared
to the use of other dangerous or deadly weapons.” He also argues that section
12022.53, subdivision (d) is arbitrary and capricious “because it imposes the harsh
punishment of a 25-years-to-life enhancement upon mere aiders and abettors who
may not even be aware that the perpetrator is armed with a firearm.”
Courts have consistently rejected the first argument made by Alcarez that
section 12022.53 is unconstitutional because it does not recognize gradations of
culpability or take into account mitigating factors. (E.g., People v. Zepeda (2001)
87 Cal.App.4th 1183, 1214-1215 (Zepeda); People v. Martinez (1999) 76
Cal.App.4th 489, 495 (Martinez).) In Martinez, this court held that “[s]ection
12022.53 as a whole represents a careful gradation by the Legislature of the
consequences of gun use in the commission of serious crimes. The section is
limited, in the first place, to convictions of certain very serious felonies. . . . The
statute then sets forth three gradations of punishment based on increasingly serious
types and consequences of firearm use in the commission of the designated
felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant
personally and intentionally discharged it, and 25 years to life if the defendant’s
intentional discharge of the firearm proximately caused great bodily injury.
Furthermore, the provision in question is an enhancement to the base term for the
underlying conviction; a trial court retains flexibility as to fixing the underlying
base term for attempted murder. [Citation.]” (Martinez, supra, 76 Cal.App.4th at
p. 495; see Zepeda, supra, 87 Cal.App.4th at pp. 1214-1215.)
This court in Martinez also rejected the argument that section 12022.53
arbitrarily imposes severe punishment in cases involving criminal use of a gun as
compared to the use of other dangerous or deadly weapons. We explained that
“the Legislature determined in enacting section 12022.53 that the use of firearms in
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commission of the designated felonies is such a danger that, ‘substantially longer
prison sentences must be imposed . . . in order to protect our citizens and to deter
violent crime.’ The ease with which a victim of one of the enumerated felonies
could be killed or injured if a firearm is involved clearly supports a legislative
distinction treating firearm offenses more harshly than the same crimes committed
by other means, in order to deter the use of firearms and save lives. [Citations.]”
(Martinez, supra, 76 Cal.App.4th at pp. 497–498; see Gonzales, supra, 87
Cal.App.4th at p. 18; Zepeda, supra, 87 Cal.App.4th at p. 1215.)
We further reject Alcarez’s contention that section 12022.53, subdivision (d)
is facially unconstitutional because it imposes a 25-years-to-life enhancement upon
aiders and abettors “who may not even be aware that the perpetrator is armed with
a firearm.” We have previously found that “[t]he Legislature has chosen to
severely punish aiders and abettors to crimes by a principal armed with a gun
committed in furtherance of the purposes of a criminal street gang. It has done so
in recognition of the serious threats posed to the citizens of California by gang
members using firearms.” (Gonzales, supra, 87 Cal.App.4th at p. 19; see id. at p.
15.) Alcarez’s facial challenge to section 12022.53, subdivisions (d) and (e) based
on the aider and abettor’s potential lack of awareness of the existence of a firearm
is therefore not well-taken.
We further reject Alcarez’s related argument that the firearm enhancements
were cruel and unusual as applied to him, because, he asserts, there was no jury
finding that he was aware that Fajardo was armed with a gun during the time in
which he was alleged to be involved in aiding and abetting conduct. Not only has
the Legislature reasonably concluded that aiders and abettors of gang violence
should be treated the same as the actual perpetrator under section 12022.53, but it
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is not correct that the jury in this case made no finding that Alcarez knew about the
gun.
The jury was instructed with CALJIC No. 3.02 that in order to be liable as
an aider and abettor of the “target” crime of assault with a firearm, Alcarez had to
have “knowledge of the unlawful purpose of the perpetrator.” Thus, in finding
Alcarez guilty of murder and attempted murder, as the natural consequences of the
target crime of assault with a firearm, the jury necessarily concluded that Alcarez
had knowledge that Fajardo intended to use a firearm to commit assault. This
implicit finding was supported by substantial evidence, as Alcarez initially
admitted during his interview with police that he knew that Fajardo had gone to get
a gun before he set off with him to act as a lookout, and later corrected himself to
state that he did not know Fajardo had a gun until just before they arrived at the
location of the shooting. Under either version of his story, he knew that Fajardo
had a gun by the time he acted as his lookout while Fajardo commenced his
assault.
In sum, we reject both the facial and as applied challenges under the Eighth
Amendment to the imposition of 25-years-to-life enhancements under section
12022.53, subdivision (d). Further, because Alcarez’s sentence was not cruel and
unusual, his trial counsel’s failure to object to it did not constitute ineffective
assistance of counsel.
III. Corrections to Abstract of Judgment
Alcarez further contends, and the Attorney General concedes, that the
abstract of judgment erroneously states that Alcarez was convicted of attempted
willful, deliberate, and premeditated murder in counts 2 through 8. Although the
jury found Alcarez guilty of seven counts of attempted murder, it found not true
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the allegations that the offenses were willful, deliberate, and premeditated.
Therefore, we order the abstract of judgment corrected to delete the notations
suggesting that the attempted murders in counts 2 through 8 were willful,
deliberate and premeditated.
In addition, Alcarez contends, and the Attorney General agrees, that the
abstract of judgment does not correctly reflect the trial court’s ruling with respect
to the victim restitution fine. The trial court ordered that a $7,029.71 restitution
fine ($6,879.71 to the State Victim Compensation Board and $150 to Charlene
Lovette) pursuant to section 1202.4, subdivision (f). However, the abstract of
judgment does not indicate the amount to be paid to Lovette. Therefore, we order
the abstract of judgment amended to reflect that Lovett is to be paid $150, and that
the codefendants are jointly and severally liable for the victim restitution fines.
IV. Remand for Resentencing
Finally, we note a sentencing error not raised by the parties. For each
attempted murder count (counts 2 through 8), the trial court incorrectly imposed
one-third the midterm, plus enhancements, to run consecutive to the indeterminate
term for the murder count (count 1). However, “[g]enerally, indeterminate term
crimes and determinate term crimes are subject to different sentencing schemes.
[Citation.] ‘Such sentencing has been conceptualized as sentencing in separate
boxes.’ [Citation.] The trial court separately determines the sentences to be
imposed for each category of crime, and then ‘combines the two to reach an
aggregate total sentence. Nothing in the sentencing for the determinate term
crimes is affected by the sentence for the indeterminate term crime[s].’ [Citation.]
When the defendant is sentenced to determinate and indeterminate terms, the
determinate term is served first.” (People v. Rodriguez (2012) 207 Cal.App.4th
23204, 211.) In the instant case, under section 1170.1, the court should have chosen
a determinate term for one of the attempted murder counts from the triad of
available sentences for that crime (5, 7, or 9 years (§ 664)) plus applicable
enhancements, and then, consecutive to that term, imposed terms of one-third the
midterm (plus enhancements) for the remaining attempted murder counts. The
court then should have combined the sentences on those counts with the
indeterminate term (plus the applicable enhancement) for the murder count (count
1) to reach a total aggregate sentence, with the determinate sentence on the
attempted murder counts to be served first. Because an illegal sentence can be
corrected at any time (People v. Reyes (1989) 212 Cal.App.3d 852, 857), we must
remand for resentencing.
DISPOSITION
The case is remanded for resentencing. On remand, the court shall choose a
determinate term for one of the attempted murder counts (plus applicable
enhancements), and then impose terms of one-third the midterm (plus
enhancements) for the remaining attempted murder counts. The court shall then
combine the sentence on the attempted murder counts with the indeterminate
sentence on the murder count to reach a total aggregate sentence, with the
determinate sentence on the attempted murder counts to be served first.
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In addition, on the new abstract of judgment, which shall be
forwarded to the Department of Corrections and Rehabilitation, the trial court is
directed to: (1) delete any notation that the attempted murders in counts 2 through
8 were willful, deliberate and premeditated, and (2) show that Charlene Lovett is to
receive $150 in victim restitution in addition to the $6,879.71 to be paid to the
State Victim Compensation Board, and to show that Alcarez and his codefendants
are jointly and severally liable for both these victim restitution payments. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
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