In re Sirypangno CA4/1 ( 2021 )

Filed 10/14/21 In re Sirypangno CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
D078705
In re KONESAVANH DONALD
SIRYPANGNO on Habeas Corpus.
(Super. Ct. No. SCD191585)
ORIGINAL PROCEEDINGS in habeas corpus.
Peter C. Deddeh, Judge. Relief granted.
George L. Schraer for Petitioner.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney
General, Daniel B. Rogers and Jennifer A. Jadovitz, Deputy Attorneys
General, for Respondent.
I.
INTRODUCTION
In 2008, a jury found Konesavanh Donald Sirypangno guilty of first
degree murder, attempted murder, and assault with a firearm as an aider
and abettor to his codefendant, David Phommachanh, who personally shot
the two victims. With respect to the attempted murder charge, the court
instructed the jury with a kill zone instruction. Years later, the California
Supreme Court decided People v. Canizales (2019) 7 Cal.5th 591 (Canizales),
which clarified and restricted the scope of the kill zone theory’s applicability.
Based on the authority of Canizales, Sirypangno petitions for a writ of
habeas corpus arguing that no kill zone instruction was warranted in his case
and that the kill zone instruction that the court gave was erroneous.1 We
asked the People to submit an informal response to Sirypangno’s petition.
The People concede in their informal response that the instruction, as given,
was legally erroneous under Canizales, and that the instructional error was
prejudicial, thus entitling Sirypangno to the vacatur of his attempted murder
conviction. For the reasons explained below, we accept the People’s
concessions and conclude that the trial court gave a legally insufficient kill
zone instruction, the instructional error was prejudicial, and the instructional
error entitles Sirypangno to have his conviction for attempted murder
vacated.2
1 Sirypangno is separately appealing from an order of the trial court
denying his petition to have his murder and attempted murder convictions
set aside pursuant to Penal Code section 1170.95 in case No. D078188.
2 Although generally the People have a right to file a return in a habeas
corpus proceeding, that right “is subject to waiver.” (People v. Romero (1994)
8 Cal.4th 728, 740, fn. 7.) A petitioner’s custodian may instead stipulate to
the allegations in the petition and to a petitioner’s requested relief and no
order to show cause is required. (Ibid.) Because the People agree that
Sirypangno is entitled to the vacatur of his conviction for attempted murder
on the ground that the kill zone instruction provided at trial was insufficient
under Canizales, supra, 7 Cal.5th 591, we conclude that we may grant the
relief that the People concede is warranted without issuing an order to show
cause or granting the habeas petition. (See Romero, supra, at p. 740, fn. 7.)
2
II.
FACTUAL AND PROCEDURAL BACKGROUND3
A. Factual background
In 2005, Sirypangno and Phommachanh were documented members of
the Oriental Killer Boys (OKB) criminal street gang. Sirypangno’s gang
moniker was “Reckless”; Phommachanh’s moniker was “Felon.” Other OKB
members included Devin Giraud and Steven Joyce.
On the evening of June 11, 2005, Phommachanh drove his girlfriend,
J.R. and his out-of-town cousin, D.B., to a friend’s residence and later to a
birthday party. Sirypangno, together with Joyce and Joyce’s girlfriend, M.R.,
drove to these same locations in a separate vehicle. OKB member Giraud
was also at the birthday party. During the party, J.R. learned that some of
her girlfriends were going to a party in Mira Mesa and decided to accompany
them. The plan was for Phommachanh to first pick up his and J.R.’s
daughter at her grandparent’s house, take the girl home, and then pick up
J.R. at the Mira Mesa party and bring her home.
Before Phommachanh headed to the Mira Mesa party, he received a
call on his cell phone. Phommachanh’s cousin heard Phommachanh tell the
person on the other end of the call to bring a “strap,” which is street jargon
for a gun, because there might be “some problems” at the party.
At approximately 11 p.m., Phommachanh, D.B. and Giraud arrived at
the Mira Mesa party, which was in the backyard of a house. Sirypangno,
3 We take the background facts from this court’s opinion in Sirypangno’s
direct appeal from his judgment of conviction, People v. Sirypangno
(February 5, 2012, D055015). In addition, in February 2021, this court took
judicial notice of the records in case Nos. D055015 and D073602, the appeal
and a subsequent state habeas corpus proceedings, which also provide the
basis for the background information outlined here. We also consider the
record in related case No. D078188, with which this case is being considered.
3
Joyce and J.R. arrived in a separate vehicle. Access to the party was limited
and the host was charging admission. At first, Phommachanh and the rest of
the group were not allowed to enter because there were too many people at
the party. Phommachanh told the two men who were manning the gate that
there would be trouble if he and his friends were not permitted to go inside.
J.R. came up to the men at the gate and told them to let Phommachanh and
the others in to avoid problems. Phommachanh, D.B., Giraud and J.R. then
walked into the backyard without paying, while Sirypangno and Joyce
jumped over the backyard fence.
There were a number of altercations at the party that evening,
including at least one before Phommachanh and his group arrived. During
that argument, a woman who was an affiliate of OKB threatened a young
man, who was an invited guest, saying that she would have him jumped by
OKB members if he did not apologize for a perceived offense. This woman
greeted Phommachanh and the others when they entered the backyard.
At one point, some of the invited guests, none of whom were gang
members, complained that they were uncomfortable because Phommachanh
and his group were “mad-dogging” or staring at people at the party. The
young man who had been threatened by the OKB affiliate and some of his
friends approached Phommachanh and Sirypangno, who were standing next
to each other, and told them to calm down or they would have to leave. In
response, Sirypangno pulled up his shirt, removed a black semiautomatic gun
from his waistband, racked a round and pointed the gun at the young man.
Although the man did not hear Sirypangno say “OKB” or “this is OKB” and
did not see Phommachanh flash gang signs, others who were present testified
that they witnessed Sirypangno and Phommachanh do these things. After
the gun was displayed, the young man’s friends pushed him into the house,
4
while Sirypangno and Phommachanh jumped over the back fence and onto a
sidewalk.
After Sirypangno and Phommachanh jumped the fence, Sirypangno
stayed on the sidewalk behind the backyard of the party house, but
Phommachanh did not. Sirypangno overheard portions of a conversation
between Tylor Thompson4 and J.W., who were standing near the fence.
Thompson and J.W. were talking about a group of girls who had been fighting
earlier and wondered where “the bitches” had gone. From the other side of
the fence, Sirypangno said: “Who you guys calling a bitch?” According to
J.W., he and Thompson replied that they were not talking to Sirypangno,
they did not know him and they did not call him a bitch. Sirypangno threw a
piece of wood at J.W. and Thompson over the fence. When J.W. and
Thompson looked over the fence, Sirypangno pulled up his shirt and
displayed the gun in his waistband. K.A., a friend of Thompson’s and the
victim of the attempted murder count, provided a slightly different version of
the fence exchange between Thompson and Sirypangno, but concurred that
the exchange was argumentative and ended with Sirypangno throwing a
piece of wood.5
4 Thompson was eventually killed. He is the victim in the murder count.
5 K.A. testified that Sirypangno said: “What the fuck did you say?”
Thompson replied: “I don’t know what you’re talking about, I don’t even
know you, you’re tripping” and “I don’t know who the fuck you are.”
Sirypangno said: “You fucking said something, what the fuck did you say,
don’t be a pussy.” Thompson responded: “Fuck you, suck my dick.” K.A.
testified that Sirypangno then said he would catch Thompson outside and
threw a piece of wood at them.
5
After the exchange, K.A., Thompson, his girlfriend, and another friend
remained in the backyard for between 15 and 20 minutes before leaving, to
allow tempers to calm down.
Meanwhile, Phommachanh, J.R. and D.B. decided to leave the party.
As the trio started walking to the car, Giraud called out Phommachanh’s
name and asked him to return. Phommachanh and D.B. walked back to see
what Giraud wanted while J.R. continued walking to the car. Sirypangno,
who appeared upset, approached Phommachanh and told him about the
exchange with Thompson. According to D.B., Phommachanh told Sirypangno
not to worry about it and tried to calm him down. While Sirypangno and
Phommachanh were talking, J.R. drove up to the house. As Phommachanh
stepped into the front passenger seat, Sirypangno handed him the gun.
When J.R. asked Phommachanh about the gun, he replied that he was just
holding it. Phommachanh then put the gun inside the glove compartment,
and J.R. drove them away.
Within five minutes, Phommachanh received a cell phone call to come
back and pick up Sirypangno. When Phommachanh and J.R. returned,
Phommachanh put a bandana over his face, removed the gun from the glove
compartment and stepped out of the car. Phommachanh waved the gun and
shouted “who wants it”; he joined Sirypangno, Joyce and Giraud, who were
lined up in front of the house waiting for Thompson to emerge from the
backyard. When Thompson came out, Sirypangno approached him and said
“you the fool that fucking told me to suck your dick.” Sirypangno either
punched or tried to punch Thompson in the face. A friend of Thompson’s
tackled Sirypangno, and Joyce joined the fight. K.A. tried to get Thompson to
stop fighting and attempted to pull him away.
6
Phommachanh pointed the gun at Thompson, who put his hands up
and said “no.”6 When the gun did not fire, Phommachanh cleared an unfired
round from the chamber by racking back the slide of the gun. He then fired
five shots, striking both Thompson and K.A. Thompson and K.A. struggled to
get up and run away, but they collapsed.
Phommachanh, Sirypangno, Joyce and D.B. got into the car and J.R.
drove them away. The group discovered that Joyce had been shot in the foot.
Phommachanh gave the gun to Sirypangno, who told J.R. to drive to Giraud’s
house because they needed to hide “the strap.” J.R. dropped off
Phommachanh and Sirypangno at Giraud’s house, where they hid the gun.7
J.R. then drove home with Joyce and D.B. When Phommachanh returned
home, he tried to clean the blood from his car. He also told J.R. and D.B. to
say that he had been at home that night, if anyone asked.
Thompson bled to death. He had suffered two gunshot wounds to the
left side of his body that could have been caused by the same bullet. One
wound was to the left arm; the other wound was to his left flank. The bullet
that entered the left flank severed the iliac artery and vein. K.A. suffered
6 K.A. testified at the trial that Phommachanh came running toward
Thompson and K.A., stopped only five to seven feet from them, and began
shooting. Thompson was standing between Phommachanh and K.A., but the
first shot hit K.A. and she began to fall. K.A. started to run past K.A. as the
second shot was fired. As the third shot was fired, both K.A. and Thompson
fell. K.A. landed on top of Thompson. Both of them were face down on the
ground. K.A. then jumped up and pulled Thompson up and they started
running away. As they ran, K.A. heard more shots. They finally got behind a
palm tree and fell into some ice plants.
7 The gun was later recovered during a search of Giraud’s residence.
Ballistic testing showed that it was the gun from which the used shell casing
at the scene had been fired. DNA from Phommachanh, Sirypangno, and a
third person was found on the gun.
7
gunshot wounds to her abdomen and right hip. K.A. had surgery to remove
her appendix, which had burst, and half of her colon.
Detective Daniel Hatfield of the San Diego Police Department’s gang
unit testified that at the time of the shooting, OKB was an Asian criminal
street gang with 106 documented gang members. Hatfield said OKB engaged
in a pattern of criminal gang activity and the gang’s primary activities were
serious assaults, burglaries, automobile thefts and murders. Hatfield also
testified about the workings of gangs in general, and explained that
reputation and respect are of upmost importance to gangs because they
enable a gang to instill fear among rival gangs and people in the community.
People who live in the community often are reluctant to testify against gang
members because they fear retaliation from the gang. Gang members gain
respect by committing violent crimes and by backing up their fellow gang
members in fights. Hatfield also testified that disrespect to a gang member is
considered disrespect to the entire gang.
B. Procedural background
Sirypangno and Phommachanh were charged with first degree murder
(Penal Code,8 § 187, subd. (a); count 1), attempted murder (§§ 187, subd. (a),
664; count 2), and assault with a semi-automatic firearm (§ 245, subd. (b);
count 3). The operative charging document also alleged that Sirypangno was
a principal in the offenses, that a principal personally and intentionally
discharged a firearm during the commission of the crimes charged in counts 1
and 2 (§§ 186.22, 12022.53, subd. (e)), and that both Sirypangno and his
codefendant committed all of the charged crimes for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)).
8 Further statutory references are to the Penal Code unless otherwise
indicated.
8
The People prosecuted Sirypangno for the charged offenses as an aider
and abettor, and the jury was instructed on both general aiding and abetting
and on the natural and probable consequences doctrine of aiding and abetting
liability. (In re Sirypangno (June 25, 2018, D073602) [nonpub. opn.].) The
jury found Sirypangno guilty on all counts, and found true the enhancement
allegations.
A panel of this court affirmed Sirypangno’s convictions in February
2012. In 2018, this court granted Sirypangno’s request for habeas relief as to
his conviction for first degree murder, pursuant to the authority of People v.
Chiu (2014) 59 Cal.4th 155 (Chiu) and In re Martinez (2017) 3 Cal.5th 1216.
The court concluded that the trial court had erred in instructing the jury that
it could find Sirypangno guilty of first degree murder on two theories, one of
which was an invalid natural and probable consequences theory, and that
there was a reasonable probability that the jury had relied on the invalid
theory of guilt in convicting Sirypangno of first degree murder. The court
remanded the matter to the superior court, ordering the superior court to
modify the conviction for murder to second degree murder if the People did
not elect to retry Sirypangno for first degree murder pursuant to section
1382. The People elected not to retry Sirypangno on the first degree murder
charge.
In April 2019, Sirypangno petitioned the trial court for resentencing
under section 1170.95. After briefing on the matter, the trial court denied
Sirypangno’s resentencing petition. Sirypangno has appealed from the trial
court’s denial of his section 1170.95 petition in related case No. D078188.
Sirypangno’s appellate attorney indicated that while he was working on
Sirypangno’s appeal in case No. D078188, he determined that the trial court
had given the same “kill zone” instruction with respect to the attempted
9
murder of K.A. that was held to be improper in Canizales, supra, 7 Cal.5th
591, and that this was the basis for Sirypangno’s current petition for habeas
relief. After Sirypangno filed his petition for writ of habeas corpus, we
requested that the People file an informal response. In their informal
response, the People concede that Sirypangno is entitled to have his
attempted murder conviction vacated based on the instructional error
Sirypangno identifies.
III.
DISCUSSION
In his petition for writ of habeas corpus, Sirypangno argues that his
conviction for attempted murder must be vacated because the trial court
erred in instructing the jury with CALCRIM No. 600, regarding attempted
murder under a kill zone theory, given the Supreme Court’s clarification of
the law regarding the kill zone theory as set forth in Canizales, supra,
7 Cal.5th 591. In an informal response, the People concede that the
CALCRIM No. 600 instruction provided to the jury in Sirypangno’s case did
not conform to the law as set out in Canizales, and they further concede that
the Canizales decision is retroactive and requires vacatur of Sirypangno’s
attempted murder conviction.
A. Canizales and the kill zone theory
In order to obtain a conviction for attempted murder, the prosecution
must establish that a defendant had a specific intent to kill and took a direct
but ineffectual act toward accomplishing the intended killing. (People v. Lee
(2003) 31 Cal.4th 613, 623.) In People v. Bland (2002) 28 Cal.4th 313, 330
(Bland), the Supreme Court adopted the kill zone theory to address a
situation in which a defendant intends to kill one person, as well as everyone
in the intended victim’s vicinity in order to ensure the intended victim’s
10
death, and causes injury to someone other than the originally intended
victim. To address that situation, Bland “embraced the concept of a
concurrent intent to kill as a permissible theory for establishing” the specific
intent requirement for attempted murder. (Canizales, supra, 7 Cal.5th at
p. 602, italics omitted.) Thus, under Bland, where the means employed by a
defendant to kill a primary target creates a zone of harm around that
primary target, the factfinder can reasonably infer that the defendant
concurrently intended to kill everyone in that zone. (Bland, at p. 330.)
A classic example of application of the theory is a situation in which a
defendant places a bomb on an airplane, intending to kill one primary target
by a method that is sure to kill all on board. (Bland, supra, 28 Cal.4th at
pp. 329–330.) The situation at issue in Bland itself, however, involved a
more common scenario: the defendant shot a flurry of bullets at a fleeing car,
killing the primary target and injuring passengers in the car. (Id. at pp. 330–
331.) After Bland, a conflict arose in the appellate courts about the
evidentiary basis that is required before a trial court may apply, and instruct
on, the kill zone theory for establishing the intent to kill element of
attempted murder; the Supreme Court granted review in Canizales to resolve
the conflict. (Canizales, supra, 7 Cal.5th at p. 602.)
Canizales arose out of a gang-related shooting at a neighborhood block
party. On the afternoon of the party, defendant Canizales argued with two
men. (Canizales, supra, 7 Cal.5th at p. 598.) Later that day, Canizales, his
codefendant, and others headed to the party. The two men with whom
Canizales had argued were at the party. Just before the shooting, five or six
men, including Canizales, lined up shoulder to shoulder facing the street
where the two men were standing. (Id. at pp. 599, 609.) On seeing the
primary target, Canizales’s codefendant yelled out to start shooting. (Id. at
11
p. 609.) The codefendant, with Canizales at his side, shot at the two men.
The shooter fired five shots from a nine-millimeter gun from 100 or 160 feet
away, killing a bystander but missing the two men. (Id. at p. 611.) One
victim thought that the shooter could not control his gun, so bullets went
everywhere. (Id. at p. 600.)
At the subsequent joint trial of Canizales and his codefendant for the
murder of the bystander and the attempted murders of the two men, the jury
was instructed with respect to the kill zone theory of intent. (Canizales,
supra, 7 Cal.5th at pp. 600–601.) The prosecutor argued that the defendants
could be found guilty of the attempted murders under either that theory or
under the theory that the defendants had the specific intent to kill the two
men. (Id. at p. 601.) Canizales and his codefendant were found guilty of
murder and two counts of attempted murder. (Id. at pp. 597, 601.)
Canizales challenged the trial court’s giving of the kill zone instruction.
On review, the Supreme Court discussed the disagreements that the kill zone
theory and its application had engendered in the appellate courts, including
within the Supreme Court itself. (Canizales, supra, 7 Cal.5th at pp. 603–
607.) In an attempt to clarify when the kill zone theory may apply, the
Supreme Court set forth a two-part test for determining when an instruction
on the kill zone theory is proper. “[T]he 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
12
murder victim who was not the primary target was located within that zone
of harm.” (Id. at p. 607.) In determining whether the defendant had the
intent to create a zone of fatal harm and the scope of any such zone, the jury
should consider the circumstances of the attack, such as the weapon used, the
number of shots fired, the distance between the defendant and alleged
victims, and the alleged victims’ proximity to the primary target. (Ibid.) If
this evidence shows that the defendant acted with only conscious disregard of
the risk of serious injury or death for those around a primary target, rather
than an intent to kill everyone in the kill zone, a kill zone instruction is
improper. (Ibid.) Using force that merely endangers everyone in the area
will not warrant the instruction. (Id. at p. 608.) In refining the kill zone
theory, the Supreme Court set the expectation that an instruction regarding
the kill zone theory will be given relatively rarely. (Ibid.)
Applying the refined rule regarding when a kill zone instruction is
appropriate to the facts before it, the Supreme Court in Canizales concluded
that there was insufficient evidence that the only reasonable inference that
could be reached was that the defendants intended to kill everyone in the
alleged kill zone. That five shots had been fired was relevant but not
dispositive, and the firing of a limited number of shots at a distance of 100 to
160 feet on a wide city street did not raise a reasonable inference that the
defendants intended to create a kill zone around the primary target. (Id. at
pp. 611–612.) In addition, the circumstance that neither of the two victims of
the attempted murder count were struck, combined with the other factors
such as the number of shots and lack of proximity of the alleged victims to
the primary target, meant that there could not be a reasonable inference that
the defendants intended to create a zone of fatal harm around the primary
target.
13
Because the evidence was insufficient to support the giving of a kill
zone instruction, the Canizales court proceeded to consider whether the error
in instructing on the kill zone theory required reversal. In doing so, the
Canizales court concluded that the standard kill zone instruction was legally
inadequate, and that the error in utilizing that instruction was one
implicating federal constitutional principles and therefore, required
application of the Chapman standard of prejudice review. (Canizales, supra,
7 Cal.5th at pp. 612–618.) Applying Chapman, the Supreme Court reversed
the defendant’s attempted murder convictions. (Id. at p. 618.)
Since Canizales was decided, the standard instruction on the kill zone
theory, CALCRIM No. 600, has been revised in a manner consistent with
Canizales. It now specifies that, “the People must prove that (1) the only
reasonable conclusion from the defendant’s use of lethal force, is that the
defendant intended to create a kill zone [around a primary target]; and
(2) [the alleged attempted-murder victim] was located within the kill zone.”
(CALCRIM No. 600 (2020).) The revised instruction also provides a list of
circumstances that jurors should consider “[i]n determining whether the
defendant intended to create a ‘kill zone’ and the scope of such a zone.”
(Ibid.)
B. The law as clarified and expressed in Canizales applies retroactively,
even to a final conviction
As an initial matter, we note that Canizales did not address whether its
holding should be applied retroactively to cases that are final on appeal, such
as Sirypangno’s. Given that the People do not address the question of
retroactivity, the People appear to assume that Canizales applies to
Sirypangno’s collateral challenge and entitles him to relief.
14
The court in In re Rayford (2020) 50 Cal.App.5th 754, 770–778 applied
the various tests relevant for determining whether a Supreme Court decision
applies retroactively to cases that are final and concluded that under all of
the tests, Canizales applies retroactively. In particular, Rayford concluded
that under the test set forth in Teague v. Lane (1989) 489 U.S. 288, 302–304,
the rule announced in Canizales is substantive and therefore applies
retroactively even to final cases. The Rayford court explained, “Similar to
Chiu, [supra, 59 Cal.4th 155,] the Canizales court altered the range of
conduct for which a defendant may be tried and convicted of attempted
premeditated murder by holding trial courts should only instruct the jury on
the kill zone theory of concurrent intent where ‘there is sufficient evidence to
support a jury determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill everyone in
the zone of fatal harm.’ [Citations.]” (Rayford, at p. 777.) We agree with the
Rayford court’s conclusion that Canizales sets out a substantive rule and
applies retroactively even where a judgment is final, permitting a defendant
to obtain relief through a collateral habeas corpus proceeding. (Id. at
pp. 776–778.)
C. At the time of the trial in this case, the evidence was sufficient to warrant
the giving of a kill zone instruction, but the instruction as given was
erroneous for the reasons described in Canizales
In Canizales, the Supreme Court concluded that there was insufficient
evidence to support the giving of any kill zone instruction. Sirypangno
contends that the same is true here, and that the trial court therefore erred
in giving any kill zone instruction. We disagree.9
9 Although we disagree with the assertion that the evidence in this case
did not support any kill zone theory, as we discuss in part III.D, post, the
court nevertheless erred by providing a legally insufficient instruction.
15
To warrant the giving of a kill zone instruction, “the record [in a
particular case] would need to include (1) evidence regarding the
circumstances of defendants’ attack on [the primary target] that would
support a reasonable inference that defendants intentionally created a zone
of fatal harm around him, and (2) evidence that [the attempted murder
victim] was located within that zone of fatal harm,” because “[t]aken
together, such evidence would permit a finding that defendants harbored the
requisite intent to kill [the attempted murder victim] because [s]he was
within the zone of fatal harm that defendants intended to create around [the
primary target].” (Canizales, supra, 7 Cal.5th at p. 610.) The Canizales court
identified the circumstances to be considered in determining whether a
defendant had the intent to create a zone of fatal harm, as well as the scope
of any such zone: “[T]he jury should consider the circumstances of the
offense, such as the type of weapon used, the number of shots fired (where a
firearm is used), the distance between the defendant and the alleged victims,
and the proximity of the alleged victims to the primary target.” (Id. at
p. 607.) The Canizales court explained, “Evidence that a defendant who
intends to kill a primary target acted with only conscious disregard of the
risk of serious injury or death for those around a primary target does not
satisfy the kill zone theory. As the Court of Appeal recently explained in
People v. Medina (2019) 33 Cal.App.5th 146, 156, . . . the kill zone theory does
not apply where ‘the defendant merely subjected persons near the primary
target to lethal risk. Rather, in a kill zone case, the defendant has a primary
target and reasons [that] he cannot miss that intended target if he kills
everyone in the area in which the target is located. In the absence of such
evidence, the kill zone instruction should not be given.’ ” (Canizales, at
p. 607.)
16
In applying these standards to the evidence before it, the Canizales
court examined the record to determine whether “the evidence concerning the
circumstances of the attack (including the type and extent of force used by
[the shooter])” was “sufficient to support a reasonable inference that
defendants intended to create a zone of fatal harm around a primary target.”
(Canizales, supra, 7 Cal.5th at p. 610; see People v. Mumin (2021)
68 Cal.App.5th 36, 47 [in deciding whether a kill zone instruction is
warranted, “[t]he trial court must determine whether the evidence would
support a jury determination that the only reasonable inference was that the
defendant held the requisite intent”].) The Supreme Court explained that
“an instruction on the kill zone theory [is] warranted . . . only if there [is]
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.’ ” (Canizales, at pp. 609–610.) In order “[t]o qualify [for a kill zone
instruction], the record would need to include (1) evidence regarding the
circumstances of defendants’ attack on [the primary target] that would
support a reasonable inference that defendants intentionally created a zone
of fatal harm around him, and (2) evidence that [the nontarget victim] was
located within that zone of fatal harm. Taken together, such evidence would
permit a finding that defendants harbored the requisite intent to kill [the
nontarget victim] because he was within the zone of fatal harm that
defendants intended to create around [the primary target].” (Id. at p. 610.)
Applying those standards to the record before it, the Supreme Court rejected
the Attorney General’s contention that the evidence was sufficient,
concluding that “the evidence concerning the circumstances of the attack . . .
was not sufficient to support a reasonable inference that defendants intended
to create a zone of fatal harm around a primary target.” (Ibid., italics added.)
17
“A trial court must instruct the jury on every theory that is supported
by substantial evidence, that is, evidence that would allow a reasonable jury
to make a determination in accordance with the theory presented under the
proper standard of proof. [Citation.] We review the trial court’s decision de
novo. In so doing, we must determine whether there was indeed sufficient
evidence to support the giving of [the] instruction. Stated differently, we
must determine whether a reasonable trier of fact could have found beyond a
reasonable doubt that defendant committed [the offense based on the
proffered theory].” (People v. Cole (2004) 33 Cal.4th 1158, 1206.) “There is no
instructional error when the record contains substantial evidence in support
of a guilty verdict on the basis of the challenged theory.” (People v. Jantz
(2006) 137 Cal.App.4th 1283, 1290.)
In reviewing the evidence for sufficiency with respect to the giving of a
kill zone instruction, we look to see whether the record includes “(1) evidence
regarding the circumstances of defendants’ attack on [the primary target]
that would support a reasonable inference that defendants intentionally
created a zone of fatal harm around him, and (2) evidence that [the
attempted murder victim] was located within that zone of fatal harm.”
(Canizales, supra, 7 Cal.5th at p. 610.) In reviewing the record for this
evidence, we apply familiar standards of evidentiary review. For example,
“[w]e ‘review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.]” (People v. Nelson (2016) 1 Cal.5th 513, 550.) “In
determining whether a reasonable trier of fact could have found [the
defendant] guilty beyond a reasonable doubt, we presume in support of the
18
judgment ‘ “the existence of every fact the trier could reasonably deduce from
the evidence.” ’ [Citation.]” (Ibid.)
“Appellate inquiry into the sufficiency of the evidence ‘does not require
a court to “ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” [Citation.] Instead, the
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ [Citation.] In
other words, ‘it is the jury, not the appellate court which must be convinced of
the defendant’s guilt.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055–
1056.) “ ‘ “ ‘An appellate court must accept logical inferences that the jury
might have drawn from the evidence even if the court would have concluded
otherwise.’ ” ’ ” (People v. Salazar (2016) 63 Cal.4th 214, 242.)
In Canizales, the evidence showed that the shooter fired five bullets,
from around 100 feet away, on a wide city street. (Canizales, supra, 7 Cal.5th
at p. 611.) The bullets were “ ‘going everywhere’ ” and did not hit anyone.
(Ibid.) Although the Supreme Court was careful to indicate that a
determination regarding whether substantial evidence supports instruction
on the kill zone theory “does not turn on the effectiveness or ineffectiveness of
the defendant’s chosen method of attack,” the court nevertheless found it
relevant that neither of the named victims was hit by any of the shots fired,
and this factor, “when viewed in conjunction with evidence regarding the
limited number of shots fired, defendants’ lack of proximity to [the primary
target], and the openness of the area in which the attack occurred—further
diminishes any inference that defendants intended to create a zone of fatal
harm around [the primary target].” (Ibid.) The Canizales court therefore
concluded “that the evidence concerning the circumstances of the attack
19
(including the type and extent of force used by [the shooter]) was not
sufficient to support a reasonable inference that defendants intended to
create a zone of fatal harm around a primary target” (id. at p. 610), and an
instruction on the kill zone theory of liability was unwarranted (id. at p. 611).
Here, the circumstances of Phommachanh’s attack on Thompson
support a reasonable inference that Thompson was the primary target and
that Phommachanh intentionally created a zone of fatal harm around
Thompson. In addition, the evidence demonstrates that K.A. was located
within that zone of fatal harm. First, there was evidence from which one
could reasonably infer that Thompson was the defendants’ primary target in
the shooting.10 For example, there was evidence that Sirypangno got into a
verbal altercation with Thompson, who was the individual who had
questioned Sirypangno’s gang status. After Sirypangno left the party, he
returned and positioned himself in a location where he could encounter
Thompson when Thompson emerged from the party. Sirypangno identified
Thompson to Phommachanh by approaching Thompson and saying, “[Y]ou
the fool that fucking told me to suck your dick.”
Second, the circumstances of the shooting also support a reasonable
inference that Phommachanh intentionally created a zone of fatal harm
around Thompson and that K.A. was located in that zone of fatal harm.
Based on the evidence, the jury could reasonably have found that after
Sirypangno yelled at Thompson and the pair began to fight, K.A. pulled
Thompson away, and that is when Phommachanh came running toward
Thompson and K.A.. Phommachanh stopped five to seven feet away from the
10 As was true in Canizales, no party argued that Thompson was not the
defendants’ primary target in the shooting. (See Canizales, supra, 7 Cal.5th
at p. 609.)
20
two and began shooting. Although Thompson was standing between
Phommachanh and K.A., the first shot hit K.A. and she began to fall.
Thompson, apparently trying to escape, started to run past K.A. as
Phommachanh shot toward the pair, who were within an arm’s length of each
other. When Phommachanh fired the third shot, K.A. and Thompson were
both falling, with K.A. landing on top of Thompson. The pair then got up and
tried to run away, and remained together, as Phommachanh fired additional
shots at them. K.A. was hit by two separate bullets from Phommachanh’s
semi-automatic firearm. Based on this evidence, the jury could reasonably
conclude that Phommachanh intended to create a zone of fatal harm within
feet of Thompson, a zone within which K.A. was located, and that he had the
concurrent intent to kill anyone in that zone in order to ensure that
Thompson was killed.
Sirypangno argues that “the circumstances of the attack on the
primary target (Thompson) were not such that the only reasonable inference
is that Phommachanh intended to kill everyone present to ensure
Thompson’s death.” However, under Canizales, this is not what our
evidentiary review requires. Again, in Canizales, the Supreme Court stated
that a kill zone instruction is proper where “there is sufficient evidence to
support a jury determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill everyone in
the zone of fatal harm,” i.e., where there is sufficient evidence to support a
jury finding of intent beyond a reasonable doubt. (Canizales, supra, 7 Cal.5th
at p. 608, first italics added.) Because it is the jury that must be convinced
beyond a reasonable doubt, the Supreme Court’s statement of the rule does
not require that an appellate court, in reviewing the sufficiency of this
evidence, determine whether the inference supporting the instruction was the
21
only reasonable inference. Instead, as the Supreme Court explained, “an
instruction on the kill zone theory would have been warranted . . . 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.’ ” (Id. at pp. 609–610, italics added.) As stated
differently elsewhere in Canizales, “ ‘ “evidence must appear in the record
which, if believed by the jury, will support the suggested inference.” ’ ” (Id. at
p. 609.)
Nor does it undermine our determination with respect to the sufficiency
of the evidence to give a kill zone instruction that it was Phommachanh, and
not Sirypangno, who was the shooter. Sirypangno contends that he was not
the shooter but was instead, an aider and abetter, and “[u]nder principles of
direct aiding and abetting, the aider and abettor must personally have the
mens rea required for the charged offense.” He argues that “there was no
evidence presented at trial suggesting that petitioner knew or shared any
intent on Phommachanh’s part to kill K.A. either directly or under a kill zone
theory.” In making this argument, Sirypangno ignores the fact that he was
tried as an aider and abetter not only pursuant to a direct aiding and
abetting theory, but also pursuant to a natural and probable consequences
theory of accomplice liability. (See In re Sirypangno (June 25, 2018,
D073602) [nonpub. opn.] [“At trial, the jury was instructed on general aiding
and abetting theory and on the natural and probable consequences doctrine
with the . . . standard jury instructions”].) Under the natural and probable
consequences doctrine, “an aider and abettor is guilty of not only the offense
he intended to facilitate or encourage, but also of any reasonably foreseeable
offense committed by the actual perpetrator. The defendant’s knowledge that
an act which is criminal was intended, and his action taken with the intent
22
that the act be encouraged or facilitated, are sufficient to impose liability on
him for any reasonably foreseeable offense committed as a consequence by
the perpetrator. [Citation.]” (People v. Miranda (2011) 192 Cal.App.4th 398,
407–408.) “The natural and probable consequences doctrine is based on the
principle that liability extends to reach ‘the actual, rather than the planned
or “intended” crime, committed on the policy [that] . . . aiders and abettors
should be responsible for the criminal harms they have naturally, probably,
and foreseeably put in motion.’ ” (Chiu, supra, 59 Cal.4th at p. 164.)
There is no question that at the time Sirypangno was tried, the natural
and probable consequences theory of aider and abetter liability was a legally
valid theory under which he could have been found criminally liable for all
three of the offenses with which he was charged—i.e., murder, attempted
murder, and assault with a semiautomatic firearm—even if he, himself, was
not the shooter.11 The fact that the evidence supported a finding that
11 Since the time of Sirypangno’s trial, the law concerning the natural and
probable consequences theory of liability has changed with respect to the
offense of murder. (See Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats.
2018, ch. 1015) (Senate Bill 1437).) This statutory amendment abolished the
natural and probable consequences doctrine in cases of murder, and limited
the application of the felony-murder doctrine. (See People v. Gentile (2020)
10 Cal.5th 830, 842–843.) Courts are currently divided as to whether Senate
Bill 1437 affects the continued viability of the natural and probable
consequences doctrine in cases of attempted murder. (Compare, e.g., People
v. Lopez (2019) 38 Cal.App.5th 1087, 1104, 1106, review granted Nov. 13,
2019, S258175 [“[a]s a matter of statutory interpretation, Senate Bill 1437’s
legislative prohibition of vicarious liability for murder does not, either
expressly or impliedly, require elimination of vicarious liability for attempted
murder”], People v. Munoz (2019) 39 Cal.App.5th 738, review granted Nov.
26, 2019, S258234 [same], People v. Dennis (2020) 47 Cal.App.5th 838, 844
[same]; with, e.g., People v. Medrano (2019) 42 Cal.App.5th 1001, 1015,
review granted Mar. 11, 2020, S259948 [rejecting Lopez court’s conclusion
and instead concluding that the Legislature “must have intended for [Senate
Bill 1437’s] provisions to apply to all crimes requiring express malice,”
23
Phommachanh intended to create a zone of fatal harm within feet of
Thompson, a zone within which K.A. was located, and that he had the
concurrent intent to kill anyone in that zone in order to ensure that
Thompson was killed, was sufficient to permit the court to give a kill zone
theory instruction with respect to Sirypangno.
D. The instruction given by the court suffers from the defects identified in
Canizales; the instructional error was prejudicial
Although we conclude that the trial court did not err in giving an
instruction on the kill zone theory, the instruction that the court gave in
Sirypangno’s trial suffered from the same defects those identified in the
instruction in Canizales, as the People concede. The jury in this case was
instructed with the pre-Canizales version of CALCRIM No. 600, regarding
the kill zone theory, as follows:
“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.
“In order to convict the defendant of the attempted murder
of [K.A.], the People must prove that the defendant not only
intended to kill Tylor Thompson, but, also, either intended
to kill [K.A.], or intended to kill anyone within the kill zone.
If you have a reasonable doubt whether the defendant
intended to kill [K.A.] or intended to kill Tylor Thompson
by harming everyone in the kill zone, then you must find
the defendant not guilty of the attempted murder of [K.A.]
The People acknowledge that the Supreme Court in Canizales
concluded that language substantively identical to this instruction was
including attempted murder], People v. Larios (2019) 42 Cal.App.5th 956,
964–968, review granted Feb. 26, 2020, S259983 [same], People v. Sanchez
(2020) 46 Cal.App.5th 637, review granted, June 10, 2020, S261768 [same].)
24
determined to be improper because the instruction failed to adequately define
the kill zone theory:
“In relevant part, the instruction . . . explained that ‘[a]
person may intend to kill a particular victim or victims and
at the same time intend to kill everyone in a particular
zone of harm or “kill zone.” ’ The instruction indicated that
the People must prove ‘that the defendant[s] not only
intended to kill [the primary target] but also either
intended to kill [the attempted murder victim], or intended
to kill everyone within the kill zone.’ Finally, the
instruction directed the jury that if it had ‘a reasonable
doubt whether the defendant[s] intended to kill [the
attempted murder victim] or intended to kill [the primary
target] by killing everyone in the kill zone,’ it must return
verdicts of not guilty. Beyond its reference to a ‘particular
zone of harm,’ the instruction provided no further definition
of the term ‘kill zone.’ Nor did the instruction direct the
jury to consider evidence regarding the circumstances of
defendants’ attack when determining whether defendants
‘intended to kill [the primary target] by killing everyone in
the kill zone.’ ” (Canizales, supra, 7 Cal.5th at p. 613.)
We accept the People’s concession, because it is clear that the
instruction given in this case is substantively the same as the instruction
given in Canizales. We therefore next consider whether the erroneous
instruction was prejudicial.
For purposes of assessing prejudice, the Canizales court distinguished
between an instruction on an alternative theory that is “not factually
supported by the evidence adduced at trial,” and one that is “ ‘ “contrary to
law,” or, phrased slightly differently, cases involving a “ ‘ “legally inadequate
theory.” ’ ” (Canizales, supra, 7 Cal.5th at pp. 613–613, quoting People v.
Guiton (1993) 4 Cal.4th 1116, 1128.) Canizales determined that the
instruction on the kill zone theory given in that case involved both types of
error; however, only an error in instructing the jury with respect to a legally
25
inadequate theory is one “of federal constitutional magnitude.” (Canizales, at
p. 615.) The Canizales court did not decide whether instructing of the jury on
a legally inadequate theory is subject to harmless error review under
Chapman, or whether “an even more stringent test” applies. (Ibid.)
However, a few months after Canizales was decided, the Supreme Court
resolved that question in People v. Aledamat (2019) 8 Cal.5th 1, 13
(Aledamat), holding that “alternative-theory error is subject to the more
general Chapman[12] harmless error test.”13 Under this test, a “reviewing
court must reverse the conviction unless, after examining the entire cause,
including the evidence, and considering all relevant circumstances, it
determines the error was harmless beyond a reasonable doubt.” (Aledamat,
at p. 13.)14
The People concede that they “cannot say the error [in this case] was
harmless” under the “ ‘clear beyond a reasonable doubt’ ” Chapman standard
of prejudice review. We agree that it cannot be determined beyond a
reasonable doubt that a properly instructed jury would have found
Sirypangno guilty as an aider and abetter pursuant to the natural and
probable consequences doctrine under a kill zone theory. The evidence
12 Chapman v. California (1967) 386 U.S. 18 (Chapman).
13 In contrast, the giving of an instruction that is not supported by the
evidence does not require reversal unless the record affirmatively indicates
that the verdict actually rests on the inadequate ground. (Aledamat, supra,
8 Cal.5th at p. 7.)
14 “When the theory is legally erroneous—i.e., of a kind the jury is not
equipped to detect—a higher standard must be met for the error to be found
harmless. ‘These different tests reflect the view that jurors are “well
equipped” to sort factually valid from invalid theories, but ill equipped to sort
legally valid from invalid theories.’ ” (Aledamat, supra, 8 Cal.5th at p. 7.)
26
demonstrated that Sirypangno, Phommachanh, and Joyce were involved in
an altercation in front of a house with Thompson, with whom Sirypangno had
engaged in an angry verbal exchange earlier in the backyard of the house.
K.A. and one other individual were also present during the altercation.
Sirypangno tried to hit Thompson, and the two became engaged in a fist
fight. As K.A. tried to pull Thompson away, Phommachanh pointed a gun at
Thompson and tried to fire, but the gun jammed. After clearing the jam,
Phommachanh fired five rounds, striking both Thompson, who everyone
agreed was the intended victim, as well as K.A., who had no prior dispute
with Sirypangno or Phommachanh or any of the others who were with them
and was not confronted by Sirypangno or any others in his group. The
evidence does not indicate that Phommachanh would have had any reason to
target K.A., specifically, to kill. In addition, the evidence demonstrated that
Sirypangno had tried to punch or otherwise hit Thompson immediately prior
to when Phommachanh began shooting. In view of Sirypangno’s proximity to
the intended target, it is reasonably likely that the jury concluded that
Phommachanh was not trying to kill everyone in the kill zone, but rather,
was targeting only Thompson, and was merely willing to create a zone of a
risk of harm around Thompson. Thus, the inadequate kill zone instruction
may have permitted the jury to render a verdict of guilt despite the lack of a
finding of an intent to kill everyone in the kill zone. We therefore cannot
conclude that the court’s giving of the legally erroneous kill zone instruction
was harmless beyond a reasonable doubt, and therefore Sirypangno’s
conviction for K.A.’s attempted murder must be vacated.
27
IV.
DISPOSITION
Sirypangno’s conviction for the attempted murder of K.A. is vacated
and the matter is remanded to the superior court with directions to allow the
People to elect to retry Sirypangno on the attempted murder charge. If the
People do not elect to bring Sirypangno to trial within the time prescribed by
law, the trial court shall enter judgment reflecting the vacatur of the
attempted murder conviction and shall resentence Sirypangno accordingly.15
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
15 In Sirypangno’s direct appeal in case No. D078188, we are remanding
the matter for further proceedings in the trial court in connection with
Sirypangno’s petition for resentencing of his murder conviction under section
1170.95. It is possible that the trial court may also have to resentence
Sirypangno with respect to the murder conviction, depending on the outcome
of those proceedings.
28