In re Milam CA2/8 ( 2022 )


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  • Filed 8/4/22 In re Milam CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
    In re                                                           B312401
    THOMAS JASON MILAM                                     (Los Angeles County
    Super. Ct. No. NA055388)
    on
    Habeas Corpus.
    Petition for writ of habeas corpus from the judgment of the
    Superior Court of Los Angeles County, Judith Levey Meyer,
    Judge. Petition granted.
    Cuauhtemoc Ortega, Federal Public Defender, Michael T.
    Drake and Raj N. Shah, Deputy Federal Public Defenders, for
    Petitioner.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Noah P. Hill, Thomas C. Hsieh, Dana M. Ali,
    Idan Ivri and Shira Seigle Markovich, Deputy Attorneys General,
    for Respondent.
    _________________________
    Petitioner Thomas Milam, codefendant Theodore Kelly and
    two other men robbed a pawnshop in Long Beach. One of the
    shop’s employees triggered a silent alarm and Long Beach Police
    Department (LBPD) personnel arrived as Milam fled alone
    through the back door of the pawnshop. LBPD Sergeant Eric
    Hooker and LBPD Officer Raymond Panek pursued Milam.
    Milam fired multiple shots at Officers Hooker and Panek but did
    not hit them. Milam was charged with, but not convicted of, the
    attempted murders of those officers. Later in the same pursuit,
    Milam fired a single shot in the general direction of LBPD
    Detectives Victor Thrash and Hector Gutierrez and was charged
    with two counts of attempted murder of these detectives.1 In
    closing argument, the prosecutor relied on the kill zone
    instruction to account for how Milam could have intended to kill
    two victims with one bullet. The jury convicted Milam of both
    attempted murder counts.
    Broadly speaking, the kill zone theory provides that “a
    defendant may be convicted of the attempted murder of an
    individual who was not the defendant’s primary target.” (People
    Canizales (2019) 
    7 Cal.5th 591
    , 596 (Canizales).) After Milam
    was convicted, the California Supreme Court limited the
    application of the kill zone theory to situations where “(1) the
    circumstances of the defendant’s attack on a primary target . . .
    are such that the only reasonable inference is that the defendant
    intended to create a zone of fatal harm—that is, an area in which
    the defendant intended to kill everyone present to ensure the
    primary target’s death—around the primary target and (2) the
    alleged attempted murder victim who was not the primary target
    1    Milam alone was charged with these attempted murders.
    2
    was located within that zone of harm. Taken together, such
    evidence will support a finding that the defendant harbored the
    requisite specific intent to kill both the primary target and
    everyone within the zone of fatal harm.” (Id. at p. 607.)
    The Supreme Court found CALCRIM No. 600, the then-
    standard jury instruction on the kill zone theory, deficient
    because it did not adequately define the term “kill zone” and did
    not adequately tell the jury to consider evidence “regarding the
    circumstances of defendants’ attack when determining whether
    defendants ‘intended to kill [the primary victim] by killing
    everyone in the kill zone.’ ” (Canizales, supra, 7 Cal.5th at
    p. 613.) The jury in this case was instructed on the kill zone
    theory with CALJIC No. 8.66.1, the predecessor kill zone
    instruction, which suffers from similar deficiencies.
    After many procedural hurdles, including several
    proceedings in federal court, Milam filed a petition for writ of
    habeas corpus in Los Angeles County Superior Court, seeking
    reversal of the two attempted murder convictions due to the
    erroneous kill zone instruction and additional errors related to
    the kill zone theory. The superior court agreed the instruction
    was erroneous but concluded only one of the two attempted
    murder convictions had to be vacated as a result. The court
    found the evidence showed “Mr. Milam was shooting at
    Gutierrez, and the other officer [Thrash] was just around the
    corner, and that he would have been in the kill zone. But,
    clearly, Gutierrez was straight ahead in the line of sight.” The
    court vacated the attempted murder conviction as to Thrash.
    This parallels the result in Canizales, where the Supreme Court
    upheld the attempted murder conviction as to the primary target
    3
    but reversed it as to the second victim who was merely in the kill
    zone.
    Milam then brought a petition for writ of habeas corpus in
    this court, seeking reversal of the conviction involving Gutierrez.
    A.     Milam Is Not Estopped from Challenging the Gutierrez
    Conviction.
    Respondent contends in its informal response that Milam’s
    counsel stated in the Superior Court that the relief he was
    seeking was either to pick one conviction and sustain it and
    vacate the other, or to vacate both and let the prosecutor decide
    whether to retry one of the counts. At the end of the hearing, the
    trial court sustained the conviction as to Gutierrez and vacated
    the conviction as to Thrash. Respondent contends that since
    Milam received the relief he was seeking, he should be estopped
    from seeking further relief.
    The reporter’s transcript reflects that Milam’s counsel
    stated: “So like I said before, the remedy in that situation is: I’d
    prefer to pick one and then sustain it and then vacate the other
    one, or vacate both, and then allow the district attorney’s office to
    decide whether it wants to retry one of the counts.” In his
    informal reply, Milam’s counsel states that he believes he said
    the “remedy isn’t to pick one conviction and sustain it and then
    vacate the other one, but to vacate both.” Counsel notes that the
    hearing took place via telephone and the transcript shows the
    court reporter had some difficulty transcribing his statements.
    More significantly, the statement as transcribed refers to
    counsel’s earlier statement (“like I said before”). Counsel began
    the hearing by noting that the district attorney’s office was
    “conceding that one count should go away, and they’re proposing
    that the court should choose.” Counsel continued: “They’re
    4
    suggesting that it’s for the—court to pick which one—which
    conviction should go away. My position is that there’s prejudice
    on both counts because there was no primary target specified.”
    Counsel continued: “So I think they both should be vacated, and
    then the DA should be left to decide whether it wants to retry one
    of them and decide which count it wants to retry.”
    Further, whether Milam’s counsel was mistranscribed or he
    misspoke, the trial court clearly did not understand him as
    changing his position and agreeing to have only one conviction
    vacated. The trial court stated to counsel: “Mr. Drake, you
    clearly do your client a service with these arguments. However,
    my opinion differs from yours, Mr. Drake.” The court then went
    on to explain that it was sustaining one conviction (Gutierrez)
    and vacating the other (Thrash). Further, at the end of the
    hearing, the court asked Milam’s counsel if he wanted the court
    to add a transcript of the hearing for him. Counsel replied that
    he did, because “I might take it up on a writ.” The court
    responded: “Right. That’s why I’m asking.”
    Respondent does not argue that the People relied on
    Milam’s counsel’s alleged concession, perhaps because there is
    nothing in the record to support such a claim. The trial court
    ruled immediately after the alleged concession. As part of its
    ruling, the court indicated that it would dismiss count 4 (Thrash)
    unless it was “something that you want to try and retry?” The
    prosecutor responded: “I wasn’t expecting that question, so no, at
    this point, we’re conceding that there was an instructional error,
    and that count should not remain.” This is entirely consistent
    with the People’s earlier briefing in the matter, in which the
    People conceded the facts of this case did not warrant the kill
    zone instruction after Canizales, and also stated that “as in
    5
    [People v. Perez (2010) 
    50 Cal.4th 222
    ] and [People v. (2009)
    
    46 Cal.4th 131
     (Stone)] . . . firing a single shot at several people
    was one offense of attempted murder.” There is nothing to
    suggest the prosecutor changed her position in reliance on
    counsel’s supposed concession.
    In its Return, respondent reincorporates the above claims,
    and adds that relief is not warranted because the superior court’s
    decision to vacate the conviction for the attempted murder of
    Thrash “solved” the problem of two convictions based on a single
    shot. Respondent contends the jury necessarily found that Milam
    intended to kill at least one of the detectives, it would be
    inequitable to vacate the remaining conviction, and Milam should
    be estopped from seeking such relief. Milam is not estopped from
    claiming the remaining conviction is improper. That is the
    question this writ proceeding will decide.
    B.     The Kill Zone Instruction Was Deficient Because It Failed to
    Identify a Primary Victim.
    In his petition, Milam alleges the kill zone instruction in
    this case suffered the same defects as the instruction used in
    Canizales, along with one additional defect. As in Canizales, the
    instruction in this case did not tell the jury that it could apply the
    kill zone theory only if it was the sole reasonable inference from
    the evidence, and it did not provide sufficient guidance on
    evaluating whether a kill zone existed (by listing factors such as
    the proximity of victims to each other). However, the instruction
    in this case also had another defect mentioned but not present in
    Canizales: the failure to identify a primary victim.
    6
    In its informal response, respondent argues the instruction
    was legally erroneous as to Thrash (because he was the kill zone
    victim and the kill zone theory did not apply), but only factually
    erroneous as to Gutierrez, “because the jury would not have
    applied the [kill zone] theory at all with respect to him.” By this
    respondent simply means that the jury would not have found
    Gutierrez was the kill zone victim and so would not have relied
    on the kill zone theory to convict him. Put differently, respondent
    argues that the jury would have found Gutierrez was the primary
    target, and so would have convicted Milam of attempted murder
    based on his specific intent to kill Gutierrez. Respondent
    contends, at length, that the evidence overwhelmingly showed,
    and the prosecutor’s arguments clearly told the jury, that
    Gutierrez was the primary target. We disagree.
    In our order to show cause, we stated Milam had made out
    a prima facie case that the kill zone instruction used in this case
    was legally erroneous under Canizales in failing to either identify
    the primary target or provide guidance to the jury on
    determining which victim was the primary target. We also stated
    he had made out a prima facie case that it was not clear beyond a
    reasonable doubt that the jurors agreed unanimously that
    Gutierrez was the primary target, or that they would have so
    agreed if properly instructed. We asked the parties to brief
    (1) whether unanimity is required as to the identity of the
    primary victim; (2) whether other instructions or argument
    conveyed that requirement to the jury; and (3) whether the
    Chapman2 standard of review applies to unanimity errors.
    2     Chapman v. California (1967) 
    386 U.S. 18
     (Chapman).
    7
    Although in their Informal Response the People had not
    contested that the kill zone required the identification of a
    primary target and agreement as to that target, in the Return
    they directly challenge the requirement to identify a primary
    target and contend unanimity was not required under the facts of
    this case. Respondent contends the error in this case was giving
    a factually unsupported instruction; therefore, the appropriate
    standard of review is Watson;3 which is not satisfied by this case.
    We now conclude that the kill zone instruction used in this
    case was legally erroneous under Canizales in failing to either
    identify the primary target or provide guidance to the jury on
    determining which victim was the primary target. We hold that
    under the facts of this case, unanimity was required as to the
    identity of the only (and thus primary) victim and this
    requirement was not conveyed to the jury by other instructions or
    argument. This deficiency alone requires review under the
    Chapman standard. Further, as a result of these deficiencies, we
    find that it is reasonably likely the jury understood the kill zone
    theory in an impermissible way, specifically that they could
    convict Milam of two counts of murder based on one shot and an
    intent to kill one person. This too requires review under the
    Chapman standard. We find it is not clear beyond a reasonable
    doubt that the jurors agreed unanimously that Gutierrez was the
    only (and thus primary) target, or that they would have so agreed
    if properly instructed.
    3     People v. Watson (1956) 
    46 Cal.2d 818
     (Watson).
    8
    1.     The Kill Zone Theory Requires Identification of the
    Primary Target.
    Respondent contends the issue before the court is not
    whether a kill zone instruction requires identification of a specific
    primary victim because such an instruction should never have
    been given in this case. As we explain in more detail below, we
    view the issue of identification of a primary target as largely
    already decided. CALCRIM No. 600 directed the trial court to
    insert the names of the primary target and kill victim, and this
    direction is supported by case law. It is respondent who is trying
    to make new law, not this court.
    Relying on Stone, respondent contends the offense of
    attempted murder does not require an identified victim. This is
    remarkably similar to the argument the Attorney General made
    in Canizales, which was rejected by the Supreme Court. The
    Supreme Court agreed Stone makes clear “there are other
    evidentiary bases, other than the kill zone theory, on which a fact
    finder can infer an intent to kill for purposes of attempted
    murder liability that do not depend on a showing that the
    defendant had a primary target (for example, when a terrorist
    places a bomb on a commercial airliner intending to kill as many
    people as possible without intending to kill a specific individual).
    [Citations.]” (Canizales, supra, 7 Cal.5th at p. 608) Milam also
    contends that under the circumstances of this case, the lack of an
    instruction on jury unanimity meant the jury was likely to have
    “mix and match” theories concerning which detective was the
    primary target.
    9
    “When the kill zone theory is used to support an inference
    that the defendant concurrently intended to kill a nontargeted
    victim, however, evidence of a primary target is required.”
    (Canizales, supra, 7 Cal.5th at p. 608, italics added.)
    The jury in Canizales was instructed on the kill zone theory
    with CALCRIM No. 600, which directed the court to identity both
    the primary target and the kill zone victims by name, and the
    instruction as given contained this information. Thus the Court
    in Canizales was not faced with a situation where the primary
    target was not identified in the jury instruction, and so did not
    discuss such a scenario. As Milam points out in his traverse, the
    reminder in Canizales that it is possible to convict a defendant of
    attempted murder without a specific identified victim under a
    Stone theory only underlines the need to identify the primary
    target in a kill zone case. As Division 1 of this District Court of
    Appeal put it: it is “[t]he absence of a specific target” which
    “distinguishes” a Stone-theory case from a kill zone theory case.
    (People v. Foster (2021) 
    61 Cal.App.5th 430
    , 441, fn. 16 (Foster).)
    As Division 1 also noted: “The two theories are mutually
    exclusive.” (Ibid.) Or, as the First District Court of Appeal
    phrased it: “Canizales and Stone work hand-in-hand to clarify the
    kill zone theory and to describe liability for partially unsuccessful
    attempts at mass murder. Stone establishes that the kill zone
    theory cannot be used when the defendant fires indiscriminately
    at a crowd of people, not aiming to kill anyone in particular, but
    hoping to kill as many as possible. [Citation.] Canizales
    reinforces that the kill zone theory requires identification of an
    intended target.” (People v. Thompkins (2020) 
    50 Cal.App.5th 365
    , 396, fn. 10 (Thompkins).)
    10
    Respondent also relies on a post-Canizales case, In re Lisea
    (2022) 
    73 Cal.App.5th 1041
    , to support its argument that no
    identification of the primary victim is required. This reliance,
    too, is misplaced. While respondent is correct that the court in
    Lisea found, in respondent’s words, that “a modified instruction
    which failed to identify a primary target nevertheless constituted
    a kill zone instruction,” that recognition does not constitute
    approval. The court in Lisea noted “the instruction does not list a
    primary target, a requirement for the kill zone instruction.” (Id.
    at p. 1054.) The court also noted “the kill zone portion of the
    instruction in this case differs from . . . other kill zone
    instructions by not identifying a primary target.” (Id. at
    p. 1055.)4 Nothing in those statements, or any statement in the
    opinion, can be reasonably understood as approving the failure to
    identify a primary target within a kill zone instruction.
    In another post-Canizales case, the First District Court of
    Appeal has more strongly indicated that the kill zone theory
    requires identification of the primary target, stating: “Canizales
    reinforces that the kill zone theory requires identification of an
    intended target. (Canizales, [supra, 7 Cal.5th] at pp. 607–608.)”
    (Thompkins, supra, 50 Cal.App.5th at p. 396, fn. 10, italics
    added.) Discussions in other post-Canizales cases support this
    requirement. As the Fourth District Court of Appeal held,
    “without a primary victim, the kill zone theory is categorically
    inapplicable.” (People v. Cardenas (2020) 
    53 Cal.App.5th 102
    ,
    118.) And Division 1 explained: “The kill zone theory applies
    4      The instruction in effect treated a bystander as the
    intended target, telling the jury it had to find that the defendant
    not only intended to kill Smith (the bystander) but also intended
    to kill others “in the kill zone.”
    11
    when the defendant chooses, as a means of killing a specific,
    targeted individual, to kill everyone in the area in which the
    targeted individual is located.” (Foster, supra, 61 Cal.App.5th at
    p. 441, fn. 16.)
    Respondent’s reliance on CALJIC 8.66.1 to support its
    argument does not remedy the absence of case law authority. As
    respondent correctly observes, CALJIC 8.66.1 does not require a
    trial court to name the alleged primary target or non-target
    victim. However, CALCRIM 600 is the official instruction on the
    kill zone theory, having been adopted by the Judicial Council.
    CALCRIM 600 was also the instruction used and analyzed in
    Canizales, and it does direct the trial court to identify by name
    both the alleged primary target and the non-target victim.
    2.     The Prosecutor Did Not Elect a Primary Victim in Its
    Closing Argument.
    Finally, respondent argues that even if a kill zone
    instruction is required to identify the primary target by name, or
    to provide guidance to the jury on that factual issue, a
    prosecutor’s argument specifying the victim the defendant
    intended to kill is sufficient to cure the deficiency.5 Certainly, a
    failure to identify the primary target in the kill zone instruction
    5     Respondent relies on People v. Mumin (2021)
    
    68 Cal.App.5th 36
    , 57 to support this argument, but there is
    nothing in that opinion to indicate whether the kill zone
    instruction identified the primary target. The argument was
    about the sufficiency of the evidence. We note, as respondent
    does not, that review has been granted in Mumin, although it
    may still be cited for its persuasive value (and to show a conflict
    in authority on an issue not relevant to this proceeding.) (Ibid.,
    review granted Nov. 10, 2021, S271049.)
    12
    will be harmless under the circumstances of some cases, and the
    prosecutor’s argument is a relevant circumstance which should
    be considered, although not necessarily the only one. Here, of
    course, Milam contends the prosecutor did not clearly specify the
    primary target, and there was a conflict in the evidence
    concerning where Milam aimed his gun. As discussed below in
    Section D2, the People did not identify a primary victim during
    trial or in closing argument nor did the evidence presented
    naturally lend itself to an identification of a primary victim. We
    cannot conclude that the prosecutor’s argument, under these
    circumstances, cured the deficiency. The kill zone instruction
    failed to identify the primary victim and was insufficient under
    Canizales.
    C.     An Instruction on Unanimity As to the Identity of the
    Primary Target Was Required under the Facts of This Case.
    Milam also contends that under the circumstances of this
    case, the lack of an instruction on jury unanimity meant the jury
    was likely to have “mix and match” theories concerning which
    detective was the primary target.
    When a kill zone instruction identifies the primary target
    and kill zone victims by name, an instruction on unanimity will
    almost certainly be superfluous. Thus we need not and do not
    address whether all kill zone instructions must tell the jury
    unanimity is required as to the identity of the primary victim. As
    we discuss below, however, a unanimity instruction was certainly
    required under the facts of this case.
    Respondent contends this case does not involve the typical
    situation where a unanimity instruction is required, that is,
    where a defendant has committed multiple acts which constitute
    a single discrete crime. Milam agrees. Respondent acknowledges
    13
    this case also does not fall into a liability situation where
    unanimity as to the theory is not required. In respondent’s view,
    if the jury applied the kill zone theory, the issue is whether it was
    required to agree unanimously as to the identity of the primary
    target. Milam agrees this case is not easily categorized for
    purposes of unanimity.
    “ ‘[E]ven absent a request, the court should give [a
    unanimity] instruction “where the circumstances of the case so
    dictate.” ’ ” (People v. Covarrubias (2016) 
    1 Cal.5th 838
    , 877.)
    That is the case here. Under the facts of this case, unanimity
    was required as to the identity of the only (and thus primary)
    victim. “When a single act is charged as an attempt on the lives
    of two or more persons, the intent to kill element must be
    examined independently as to each alleged attempted murder
    victim; an intent to kill cannot be ‘transferred’ from one
    attempted murder victim to another under the transferred intent
    doctrine.” (Canizales, supra, 7 Cal.5th at p. 602, citing People v.
    Bland (2002) 
    28 Cal.4th 313
    , 327–328 (Bland).) Further, the
    general rule is that unanimity is required as to the victim if there
    are multiple victims alleged, but only a single count of a crime is
    alleged. People v. McNeill (1980) 
    112 Cal.App.3d 330
    , 335–336
    [“The possibility that the jurors may have come to different
    conclusions as to the identity of the assault victim vitiates the
    constitutionally required assurance of juror unanimity as to the
    assault conviction. While it is of course possible that the jurors
    agreed unanimously as to a particular victim of the assault, such
    agreement would necessarily be fortuitous in the absence of a
    proper instruction.”].) In effect, that was the situation here.
    Only one conviction was legally permissible and there were two
    potential victims.
    14
    In this regard, respondent proffers an exception to the
    unanimity requirement. Respondent contends unanimity was
    not required under the facts of this case because Milam’s defense
    was the same for both counts of attempted murder. (See People v.
    Jennings (2010) 
    50 Cal.4th 616
    , 679.) Respondent characterizes
    Milam’s defense as: “[H]e did not intend to kill either Detective
    Gutierrez or Detective Thrash but only intended to escape.” The
    reason no unanimity instruction is required when the defendant
    presents the same defense to multiple acts is that the jury will
    accept or reject the defense for all charges.
    Milam certainly argued that he did not intend to kill
    anyone, and he did not fire his gun at the detectives. The jury
    did not accept this defense.
    However, this was not Milam’s sole or complete defense.
    The prosecutor’s theory was that pointing a gun at someone
    showed intent to kill. Milam also argued, less directly and as an
    alternative defense, that he could, at most, have intended to kill
    only one of the detectives with his one shot, since the detectives
    were not next to each other. He also noted the two detectives
    gave inconsistent accounts of where his gun was pointed.
    Resolution of where the gun was pointed was not dependent on
    Milam’s credibility. Thus, the jury could accept or reject the
    defense as to all charges whether or not it believed Milam. The
    same defense exception to the unanimity requirement does not
    apply.
    D.     The Chapman Standard of Review Applies.
    Milam contends the failure to give a unanimity instruction
    is reviewed under Chapman. We agree. As Milam notes, most
    appellate courts in California have assessed unanimity error
    under Chapman. (See People v. Hernandez (2013)
    15
    
    217 Cal.App.4th 559
    , 576, and cases cited therein.) A minority
    applies the Watson standard, based on the fact that the U.S.
    Supreme Court had “ ‘never held jury unanimity to be a requisite
    of due process.’ ” (People v. Vargas (2001) 
    91 Cal.App.4th 506
    , 562.) That is no longer true. (Ramos v. Louisiana (2020)
    ___U.S. ___ [
    140 S.Ct. 1390
    , 1397] [Sixth Amendment’s
    unanimity requirement applies to state and federal criminal
    trials equally].) Chapman should now control.
    We would reach the same conclusion concerning the
    standard of review if we applied the two-step analysis in
    Canizales. In the first step, the court determines if there is a
    reasonable likelihood that “the jury understood the kill zone
    theory in a legally impermissible manner.” (Canizales, supra,
    7 Cal.5th at p. 613, citing People v. Kelly (1992) 
    1 Cal.4th 495
    , 525, quoting Estelle v. McGuire (1991) 
    502 U.S. 62
    , 72.) The
    court considers the arguments of counsel and other relevant
    instructions to determine whether the jury understood the law in
    a legally impermissible way. In step two, if the court determines
    if there is a reasonable likelihood that the jury understood the
    kill zone theory in a legally impermissible way, then the case is
    “similar to People v. Green (1980) 
    27 Cal.3d 1
    ,” a case where the
    jury might have based its verdict on either a legally correct or a
    legally incorrect theory. (Canizales, at p. 614.) As the California
    Supreme Court subsequently clarified, such “alternative-theory
    error is subject to the more general Chapman harmless error
    test. The 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.” (People v. Aledamat
    (2019) 
    8 Cal.5th 1
    , 13 (Aledamat) [disapproving any
    16
    interpretation of Green that “limits the reviewing court to an
    examination of the jury’s findings as reflected in the verdict
    itself”.].) If the instruction is simply factually erroneous, that is
    unsupported by the evidence, it is reviewed pursuant to Watson.
    (Canizales, at pp. 612–613.)
    1.    Step One
    Respondent contends the question is whether, considering
    the instruction and the arguments of counsel, there was a
    reasonable likelihood the jurors understood or applied the kill
    zone theory in a legally impermissible way—which means
    whether they could have convicted petitioner of attempted
    murder of Gutierrez without a specific intent to kill him under
    the theory that he was the unintended victim in the kill zone of
    Thrash.6
    We view the step one question more broadly. A kill zone
    instruction should only be given when the evidence supports
    more than one count of attempted murder for a single incident.
    The instruction is unnecessary when the evidence supports only
    one count of attempted murder. As the district attorney
    acknowledged for the People in the superior court, “the facts of
    Petitioner’s case (one single shot fired at two victims) no longer
    justifies the trial court’s kill zone theory instruction after
    Canizales.” Thus, the question before us is whether there is a
    reasonable likelihood the jury understood the instruction as
    6     The question at the first step is only how the jury
    understood the theory as set forth in instructions and argument:
    “we must ask whether there is a ‘ “ reasonable likelihood” ’ that
    the jury understood the kill zone theory in a legally
    impermissible manner.” (Canizales, supra, 7 Cal.5th at p. 613.)
    We consider the issue of “applied” in step two.
    17
    permitting it to convict Milam of two counts of attempted murder
    on the legally impermissible theory that firing a single shot at
    one victim could support two attempted murder convictions. We
    think the answer is yes.
    As might be expected from its title, “Attempted Murder-
    Concurrent Intent,” the kill zone instruction in this case focused
    on the defendant’s intent, not his actions. The instruction stated:
    “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 ensure harm to the primary
    victim by harming 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’ is an issue to be
    decided by you.” (Italics added.) As a result, the instruction
    suggests that it is intent which matters and that an attack on the
    primary victim may itself be sufficient to show an intent to kill
    others in the kill zone, without making clear that such inference
    would not be reasonable without an accompanying act. Put
    differently, the instruction does not convey that it is
    unreasonable to infer that a defendant intended to kill someone
    in addition to the primary target unless he fired more than one
    shot.
    The People only aggravated the potential for
    misunderstanding when the prosecutor discussed the instruction
    during rebuttal closing argument. The prosecutor noted defense
    counsel “brought up[] why did he only fire one shot” if he
    intended to kill two people. The prosecutor referred the jury to
    18
    CALJIC No. 8.66.1, telling the jury that the instruction “talks
    about something called the kill zone. [¶] It says, a person who
    primarily intends to kill one person may also concurrently intend
    to kill other persons within a particular zone of risk. The law
    specifically addresses what counsel got up here and said to you,
    how could he intend to kill both officers if he only shot once. [¶]
    Well, it’s called the kill zone. If I intend to kill, if one of you
    wants to kill me and shot toward me, and the court reporter is
    standing behind me, you know you will hit her if you miss me,
    but you do it anyways. That’s what this addresses. [¶] You can
    intend to kill two people with one shot if you’re standing in the
    same kill zone; if they are standing in the same area.”7
    That is not what the kill zone theory is intended to address.
    The prosecutor’s suggestion that one shot and one intent to kill
    could support two attempted murder convictions if the defendant
    had bad aim and missed the primary target is a bizarre amalgam
    of conscious disregard for life/implied malice and transferred
    intent. Neither doctrine may be used in attempted murder cases
    at all. (Bland, supra, 28 Cal.4th at pp. 326–328; Canizales,
    supra, 7 Cal.5th at p. 607 [kill zone theory re-affirms the law’s
    long-standing rejection of those doctrines and requires that the
    defendant specifically intend to kill everyone in the kill zone].)
    Thus, there is a reasonable likelihood that the jury understood
    the instruction and argument together to permit them to convict
    7     This argument is remarkably similar to the misleading
    argument in Canizales which, as the Court noted, “essentially
    equated attempted murder with implied malice murder” or
    advanced a sort of natural and probable consequences argument
    that “anyone within a zone of harm could die.” (Canizales, supra,
    7 Cal.5th at p. 614.)
    19
    Milam of the attempted murders of Thrash and Gutierrez even
    though Milam had the specific intent to kill only one of the
    detectives.
    2.    Step Two
    Because we have determined that there is a reasonable
    likelihood the jury understood the kill zone theory in a legally
    impermissible way, we examine the entire cause, including the
    evidence, and considering all relevant circumstances, to
    determine whether the error was harmless beyond a reasonable
    doubt.” (Aledamat, supra, 8 Cal.5th at p. 13.) We cannot find the
    error harmless beyond a reasonable doubt, and we must reverse.
    (Ibid.)8
    Here, we consider respondent’s argument that the
    prosecutor “emphasized” that Gutierrez was the primary victim
    and Thrash the unintended kill zone victim9 and that the
    8      Under Watson, the giving of the erroneous instruction
    would be prejudicial “ ‘only if that theory became the sole basis of
    the verdict of guilty; if the jury based its verdict on the valid
    ground, or on both the valid and the invalid ground, there would
    be no prejudice, for there would be a valid basis for the verdict.’ ”
    (Canizales, supra, 7 Cal.5th at pp. 612–613.) Because respondent
    contends that the Watson standard applies, respondent argues
    that it is not reasonably probable that the jury convicted Milam
    of the attempted murder of Gutierrez on the sole theory that
    Gutierrez was the kill zone victim. We have determined that the
    applicable standard is Chapman, however, and that requires a
    different analysis.
    9      Respondent suggests that this argument constituted an
    election for purposes of unanimity. Such an election must be
    clear, and as we discuss in more detail below, this was not.
    20
    evidence at trial supported this theory and did not support a
    theory that Thrash was the primary target. We do not agree.
    In the initial closing argument, the prosecutor did not
    distinguish between the two detectives. He repeatedly used the
    plural pronoun “them” and otherwise referred to them
    collectively. The prosecutor argued: “Gutierrez and Thrash
    remembered it differently. If you recall, there was a lot of cross-
    examination on that. [¶] Recall that the defendant was facing
    him in the process of turning when he raised his arm almost level
    but not all [the] way up and fired the shot and saw a muzzle
    flash. [¶] Detective Thrash recalled the defendant’s body being
    turned away when defendant raised his arm, again, not all the
    way up but raised it almost level firing the shot. Detective
    Thrash was in front of and little bit offset from Detective
    Gutierrez. [¶] Again, when the defendant pointed his gun and
    fired that shot, there’s no way he had any intent to do anything
    other than kill them.” (Italics added.)
    The prosecutor briefly returned to Milam’s previous
    encounter with two other police officers, noting Milam put his
    gun away after that encounter but when Milam encountered
    Thrash and Gutierrez, “[h]e pulls his gun out to shoot again. [¶]
    That is great evidence to show what was in his mind at that time.
    His mind was that, I’ll pull my gun back out and I’ll shoot at more
    cops and hopefully hit one of them so I can get free and get out of
    here. He pulls his gun out and fires yet another shot at two police
    officers, Detective Gutierrez and Thrash.” (Italics added.)
    In going through the elements of attempted murder, the
    prosecutor argued: “Raising your gun and shooting at someone,
    clearly shows intent to kill.” He continued: “After putting his gun
    away, he pulled it out and shot again at Officer Gutierrez and
    21
    Thrash. So that’s all willful means.” (Italics added.) The
    prosecutor then stated: “At that moment he’s thinking, I better
    pull my gun out again so I can shoot officers again. That’s
    deliberation.” (Italics added.)
    Nowhere in this discussion did the prosecutor suggest
    Milam “directly” intended to kill Gutierrez as opposed to Thrash.
    The prosecutor did not discuss the kill zone theory at all in the
    initial closing argument.
    In rebuttal closing argument, the prosecutor noted defense
    counsel “brought up, why did [Milam] only fire one shot.” As
    discussed above in more detail, the prosecutor responded by
    discussing CALJIC No. 8.66, telling the jury that instruction
    “talks about something called the kill zone. [¶] . . . [¶] . . . That’s
    what this addresses.”
    Then, for the first time, the prosecutor addressed the
    concept of a primary target, explaining the instruction says
    “whether a perpetrator actually intended to kill the victim either
    as a primary target or as someone in a kill zone is an issue to be
    decided by you. So it’s up to you.” The prosecutor then asked:
    “Was Detective Thrash in an area where defendant would know
    he was there, and in firing, was Detective Thrash in the kill zone
    of Detective Gutierrez?” The prosecutor then argued Thrash had
    testified that he was between Gutierrez and the defendant when
    defendant fired the shot. The prosecutor also argued “Detective
    Thrash believed the shot was fired at him.” Given the
    prosecutor’s repeated assertions that pointing a gun at a person
    showed an intent to kill the person, this statement about Thrash
    suggested Milam could have intended to kill Thrash as the
    primary target.
    22
    At no point did the prosecutor suggest that if the jury found
    the kill zone theory inapplicable, it should convict Milam of the
    attempted murder of Gutierrez alone because Milam “directly”
    intended to directly kill Gutierrez with his one shot. The
    prosecutor made clear his belief that there was a primary target,
    but it was up to the jury to decide who Milam’s primary target
    was. That person was necessarily the one whom Milam “directly”
    intended to kill. At no point did the prosecutor or the
    instructions tell the jury it needed to agree on which detective
    was the primary target.
    Later, reviewing the evidentiary record of the trial, the
    superior court found the evidence was clear Milam was shooting
    at Gutierrez as the primary target and Thrash was “around the
    corner” and was a kill zone victim. The court was mistaken.
    Gutierrez was behind the police car. Both Gutierrez and Thrash
    placed Thrash in the open and near Gutierrez, but closer to
    Milam than Gutierrez was.10 This was in fact the only key point
    on which the two detectives agreed and it alone would make
    Thrash the obvious primary target for Milam.
    10    Thrash testified that he was on the sidewalk about 20 feet
    from Milam when Milam fired his gun. Gutierrez and the police
    car were 20 feet behind Thrash, placing Thrash midway between
    Milam and Gutierrez. Gutierrez testified he was behind the
    police car when Milam fired. He agreed that Thrash was
    between him and Milam, although he estimated that Thrash was
    three feet in front of him and three feet to the right. Given
    Gutierrez’s self-described position behind the left rear panel of
    the car (i.e., the trunk on the driver’s side), Thrash could not have
    been behind the car. Gutierrez estimated that Milam was about
    30 feet in front of him.
    23
    Thrash also testified he briefly pursued Milam on foot, as
    Milam ran away from the building walkway and then turned
    around and ran back toward the walkway. Thrash was initially
    in the street, with parked cars between himself and Milam. Once
    Milam turned around, Thrash “cleared” the cars and went onto
    the sidewalk or grass verge, in anticipation that Milam was
    planning to run back into the walkway.11 This fact alone would
    also make Thrash the obvious primary target for Milam.
    The prosecutor and the trial court appear to have viewed
    Gutierrez as the more likely primary target because he testified
    Milam was running toward him, raised his arm with the gun
    almost completely level and pointed it “directly” at Gutierrez.
    Given the detectives’ locations, however, running toward
    Gutierrez was necessarily also running toward Thrash and
    pointing a gun “at” Gutierrez from a distance of 20 to 40 feet
    would almost certainly be indistinguishable from pointing the
    gun “at” Thrash. Thus, nothing in Gutierrez’s description of
    events ruled out Thrash as the primary target.
    Thrash’s testimony about the shooting itself was more
    equivocal than Gutierrez’s testimony. Thrash described Milam
    as firing over his shoulder with his arm not fully extended.
    Thrash stated he saw Milam raise the gun “partially; not
    completely level to where I was standing or my partner was
    11    Gutierrez was not questioned about Thrash’s movements,
    although Gutierrez indicated he saw Milam running toward him
    as soon as he got out of the police car, which, depending on how
    fast Gutierrez exited the car, might indirectly contradict Thrash’s
    account of a chase. Thrash, however, described the chase as
    lasting only seconds.
    24
    standing and to fire a gunshot.” 12 Thrash stated: “I [then] turned
    and made a step to my right, which would have put the corner of
    the building between the suspect and myself.” Nonetheless,
    Thrash’s testimony as a whole indicated he believed Milam was
    firing toward him.
    There was one other notable discrepancy in the detectives’
    testimony. Gutierrez testified both he and Thrash took their
    guns out as soon as they got out of their car. Thrash testified he
    did not take out his gun because he did not see that Milam had a
    gun until Thrash “cleared” the cars; by then he did not have time
    to pull his gun. According to Thrash, Milam fired first.
    According to Gutierrez, Milam fired after Gutierrez finished
    firing. If Gutierrez alone had his gun out and if Milam was
    aware of this, or if Gutierrez fired first, then either of those facts
    would make Gutierrez the obvious primary target.
    As we discuss above, the jury was not instructed that it had
    to agree unanimously on the identity of the primary target, and
    the prosecution did not convey this requirement to the jury or
    make an election as to the identity of the primary target which
    12    Thrash physically recreated this movement during cross-
    examination, but the description provided by defense counsel is
    not helpful: “The gentleman is facing away. His right arm is
    being held out; elbow is pointed away. His hand is about
    30 degrees. Arm is 30 degrees extended.” Milam views this
    description as indicating that the gun was pointing downward
    toward the ground and so did not evidence an intent to kill. It is
    possible to understand this description as indicating that the gun
    was pointing down at a 30 degree angle, but given that Milam
    was reaching behind his back to fire, it is also possible to
    understand it as referring to the way Milam bent his hand and
    arm in order to be able to fire behind himself.
    25
    would have vitiated the need for a unanimity instruction. Given
    the conflicting evidence described above, there is a reasonable
    possibility that at least one juror believed Thrash was the
    primary target whom Milam directly intended to kill, or put
    differently, it is not clear beyond a reasonable doubt that all
    12 jurors agreed Gutierrez was the primary target whom Milam
    “directly” intended to kill. We cannot say beyond a reasonable
    doubt that a properly instructed jury would have reached the
    same verdict as to the attempted murder of Gutierrez. Indeed
    there is a reasonable possibility that a jury, properly instructed
    to determine which detective Milam wanted to kill, would look at
    the conflicting evidence and be unable to agree on the target, or
    would conclude that the evidence did not prove Milam intended
    to kill either detective.
    Although reversal of the attempted murder conviction
    involving Gutierrez is required, there is sufficient evidence to
    support a conviction for the attempted murder of Gutierrez, and
    so retrial is permissible. We find such a retrial would not merely
    be a formality to obtain the same result. Milam fired his single
    shot at moving officers while he himself was moving, he did not
    hit either officer, and he fled without firing further shots. As we
    have explained, it is reasonably possible that a properly
    instructed jury, if forced to decide which detective Milam
    intended to kill, might find the circumstances of Milam’s single
    shot do not support an inference to kill either detective. More
    pertinently, they might not be able to agree unanimously that
    Milam intended to kill Gutierrez.
    26
    DISPOSITION
    The petition for writ of habeas corpus is granted. The
    judgment of conviction is reversed. The matter is remanded to
    the trial court for retrial on the attempted murder count as to
    Gutierrez, if the People so elect.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    STRATTON, P. J.
    We concur:
    GRIMES, J.
    WILEY, J.
    27
    

Document Info

Docket Number: B312401

Filed Date: 8/4/2022

Precedential Status: Non-Precedential

Modified Date: 8/4/2022