People v. Stelly CA1/3 ( 2021 )

Filed 8/16/21 P. v. Stelly CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A157142
v. (Contra Costa County
Super. Ct. No. 51711365)
KAMANI STELLY,
Defendant and Appellant.
Following a jury trial, defendant Kamani Stelly was convicted of
shooting into an occupied vehicle (Pen. Code, § 2461) (count one) and
four counts of attempted willful, deliberate, and premeditated murders
of Dexter Reed (Reed), Odall Qualls (Qualls), John Doe 1, and John Doe
22 (§§ 187, subd. (a), 664) (counts two through five), together with
related true findings that defendant personally and intentionally
discharged a firearm causing great bodily injury to Reed and Autumn
White (§ 12022.53, subd. (d)). Defendant was sentenced to an
aggregate term of 37 years to life in prison.
1 All undesignated statutory references are to the Penal Code.
2 The trial court designated these victims as John Doe 1 and John
Doe 2 as their identities were unknown.
1
On appeal, defendant challenges his convictions for the
attempted murders of Reed, Qualls, and John Doe 2 on the basis that
the trial court committed prejudicial error by instructing the jury on
the kill zone theory of attempted murder. He further contends that his
conviction for the attempted murder of John Doe 2 should be reversed
because there was no substantial evidence to support either a kill zone
theory or a specific intent theory. Defendant does not challenge his
conviction for the attempted murder of John Doe 1.
We affirm the convictions for the attempted murders of Reed and
Qualls (counts 2 and 3) as any instructional error was harmless beyond
a reasonable doubt since a reasonable jury would have found defendant
had the specific intent to kill Reed and Qualls. Therefore, the jury
would have rendered the same verdicts absent the kill zone instruction.
We reverse the conviction for the attempted murder of John Doe 2
(count 5) since, as conceded by the People, there was no substantial
evidence to support the theories submitted to the jury – that defendant
specifically intended to kill John Doe 2 or intended to kill everyone in a
particular kill zone. We remand the matter for dismissal of count five
and for resentencing. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The charges arose from a shooting on Cavallo Road, a busy street
in Antioch, on December 19, 2016. The prosecution’s theory was that
the shooting arose from a verbal argument defendant and his friend
Cody Moss had with Reed, Qualls, and John Doe 1. While the loud
argument was ongoing, and the two groups of men were some distance
from each other, defendant took Moss’s gun and fired 18 shots
(emptying the gun) in the direction of the three men. Two bullets hit
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Reed in his arm and stomach and seriously injured him. Two other
bullets struck the windshield of a passing vehicle, seriously injuring
passenger Autumn White. The surveillance videos of the incident
revealed a fourth man, John Doe 2, but there was no evidence as to his
identity or his location at the time defendant started to fire his gun.
At trial, defendant admitted he fired 18 bullets at Reed, Qualls,
and John Doe 1. He claimed the shooting was justified because he and
Moss were being pursued by the three men who were acting in a
threatening manner. Specifically, the men were making multiple hand
gestures, and defendant believed one man had a gun and was going to
shoot him.
A. People’s Case
Reed testified he was smoking marijuana and “chilling” with two
or three other men including Qualls outside an apartment building on
Cavallo Road. Reed did not have a gun and did not see anyone in his
group with a gun. As Reed sat on the front steps of the building, he
became aware that Qualls and two or three other men had gotten into a
verbal confrontation with the occupants of a car driving by the building.
Because Reed was high on marijuana, alcohol, and possibly cocaine, he
did not pay attention to the confrontation.
Shortly after the car went by the second time, Reed started
walking north on Cavallo Road towards the intersection with East 18th
Street. Qualls and two other men including John Doe 1 followed Reed
as he walked north. Reed saw defendant and Moss walking south
towards him. Defendant and Moss turned around and started walking
north on Cavallo Road. Reed, Qualls, and John Doe 1 followed
defendant and Moss across the intersection with East 18th Street and
3
continuing north on Cavallo Road. When the two groups of men were
approximately 30 feet apart, Reed felt the situation become serious
because his group was acting in an aggressive manner as they followed
defendant and Moss.
While on the sidewalk near a pizza store on Cavallo Road (just
north of the East 18th Street intersection), Reed was hit in the arm by
a gun shot. Reed was then a few feet from Qualls and John Doe 1, but
Reed did not know who fired the gun or the location of the shooter. Nor
did Reed hear a gunshot before he was struck in the arm. He
screamed, “ ‘I got hit,’ ” and tried to get away by fleeing south on
Cavallo Road back towards East 18th Street. As he ran away, Reed
was shot a second time in the stomach. He fell to the ground, rolled
over, got up, and then continued running south across East 18th Street
before falling in a parking lot.
The People presented the testimony of several witnesses who
heard or saw the shooting. One witness identified defendant as the
shooter, but none of witnesses saw the shooter’s intended targets. The
People also presented evidence of the recovery of a nine-millimeter
Luger gun (found in a shed at the rear of the building where defendant
lived) and 18 shell casings (fired from the recovered gun found in two
clusters on Cavallo Road)3, along with evidence that 18 bullets could be
fired from the recovered gun without reloading it. A DNA test
comparing buccal swabs from defendant and Moss with swabs from the
3 A majority of the 18 shell casings were found north of a telephone
pole that was located on Cavallo Road, 427 feet north of the
intersection of Cavallo Road and East 18th Street. It was 27 feet from
the telephone pole further north to the beginning of a cluster of shell
casings, and 53 feet from the telephone pole further north to another
cluster of shell casings.
4
nine-millimeter gun magazine showed a mixed profile with defendant
being a contributor to the partial major DNA profile found on the gun.
The jury saw surveillances videos and still photographs taken
from several locations along Cavallo Road. One video showed
defendant and Moss walking north on Cavallo passing the pizza store –
the men appeared to be arguing with someone to their south outside
the video frame. Another video showed defendant and Moss walking
north on Cavallo Road opposite the pizza store – they paused while
Moss withdrew a gun and handed it to defendant, defendant turned,
lifted his arm, and began to shoot in a southernly direction.
B. Defense Case
Qualls testified that he was standing outside of an apartment
building on Cavallo Road with Reed and one other man whom he did
not know (John Doe 1) (the Qualls group) when Moss drove his car past
them two times. John Doe 1 yelled back, “ ‘You going to say that to my
face?’ ” Moss then pointed out the window, yelled back something, and
continued to drive his car. Qualls did not yell back, but immediately
acted like he was going to reach for something to protect himself. He
told the other men with him, “ ‘We don’t got nothing, get in there. We
don’t know what they got.’ ” Moss then drove back a second time,
yelled, and the two groups “had a verbal-type altercation.” The
passenger in Moss’ car did not yell anything at the Qualls group. Moss
then drove away and parked his car “about 400 feet” north on Cavallo
Road.
Later that day, the Qualls group saw Moss and defendant
walking down Cavallo Road toward the Qualls group. Moss had his
hand in his pocket which meant to Qualls that Moss had a gun (Qualls
5
did not see a gun). The Qualls group was not looking to get into a
confrontation with Moss and defendant but did walk north on Cavallo
Road towards them because, if they were going to get shot, they did not
want it to happen in front of the apartments. Qualls wanted to make it
seem his group had weapons, so Qualls began yelling, trying to make a
lot of noise, and had his hand in his pocket. Qualls did not think the
situation was serious because, when the Qualls group started to walk
towards Moss and defendant, Moss and defendant turned around and
started to walk away. However, when the men were walking towards
each other, Qualls felt threatened and that his life was in danger; if he
had a gun he would have shot at Moss and defendant. Qualls did not
see a gun in the hands of either Reed or John Doe 1.
The Qualls group continued to walk north on Cavallo Road,
crossed East 18th street, and continued to the pizza store. Right before
the shooting, the men were still yelling at each other. Qualls, Reed,
and John Doe 1 were daring Moss to shoot them. Qualls did not believe
Moss would actually shoot him because he did not think he had it in
him. Qualls was distracted as a car drove by and the driver, a friend,
yelled to ask if he was all right. Qualls said he was okay, and then
heard what sounded like gunshots and saw John Doe 1 and Reed
running in front of him. At the time the gunshots started, John Doe 1
was about “about two steps” in front of Reed, and Reed was “about
three steps” in front of Qualls. Qualls did not see the shooter. After
Qualls turned his back and ran away, the gunshots kept coming.
On direct examination, Qualls recalled that at an earlier court
hearing he said that he did not believe the gunshots were meant for
him, and that John Doe 1 had “escalated the issue.” On cross-
6
examination, when asked why he did not think the shots were meant
for him, Qualls said, “I don’t know. Because, you know, I’m out there
every day, so if a person wanted to do something to me, it would have
happened.” When asked who he thought the gunshots were meant for,
Qualls said, “I don’t know exactly. I don’t know. I think they just
having a bad day or something.” Qualls confirmed that all of the men
in his group were saying things but John Doe 1 was “doing the most to
escalate the situation” by getting more upset and angrier, and getting
pretty loud, so that Qualls even told him to “ ‘[c]alm down]’ ” and “
‘Dude, be quiet.’ ” While Qualls did not see the shooter at the time the
shots were being fired, Qualls believed the shots were aimed more
towards John Doe 1 because he was “in front” – according to Qualls, the
three men were in a line, and Reed and John Doe 1 kept going, while
Qualls stopped and turned around.
Defendant also testified. On the morning of the shooting, he and
Moss left the residence where they lived together (an apartment in a
building on Cavallo Road) to get marijuana. When they were heading
back to their apartment, Moss was driving his car northbound on
Cavallo Road. Defendant saw three men outside an apartment
building on Cavallo Road – Reed and Qualls, whom defendant knew,
and a third man (John Doe 1) whom defendant had seen before but he
did not know. Defendant grew up in the same area as Reed and Qualls,
knew them, did not have any previous problems with either of them,
and considered Reed a friend. Defendant had never known Reed to
have a gun but assumed Qualls was armed because the neighborhood
had a lot of crime and drug activity.
7
As Moss “was speeding down the street, and he turned around
and sped back down, turned around, sped back down,” Reed and Qualls
walked into the middle of the street, one unidentified man “got mad,”
and another unidentified man spoke but defendant could not hear him
with the car windows rolled up. After Moss had driven by the three
men a second time, Moss turned right onto East 18th Street, took a
back route, and parked his car at his residence. Moss took his gun from
the car console and put it in his pocket.
Defendant and Moss then started walking south on Cavallo Road
toward the intersection at East 18th Street to go to a liquor store to buy
rolling papers. At the intersection, Moss saw and started to yell
profanities at Reed, Qualls, and John Doe 1, the three men yelled back,
and they seemed “serious.” Because the men were a “potential threat,”
defendant and Moss turned around and started walking back north on
Cavallo Road toward their apartment with defendant ahead of Moss.
Moss continued to argue with the three men who were following them.
At one point defendant turned around and saw the three men walking
together and continuing to follow, making “a lot of hand gestures and
arguing back and forth, and they were still walking up on” defendant
and Moss, which made defendant nervous that somebody was going to
fight or that possibly shots would be fired. As the three man were
“gaining” or “coming closer” to defendant and Moss, defendant was a
little concerned that the three men had weapons.
As defendant approached his apartment, the three men got
closer. Defendant testified the closest the three men got to him was
“[a]bout 30 feet,” but he did not remember when that occurred during
the incident. As defendant and Moss continued to walk north,
8
defendant looked back and saw one of the three men (he did not know
which one) reach for his hip area or jacket pocket and bring something
out. Defendant thought the object was a gun and there was no doubt in
his mind that his life was in danger. Within a “split second” of seeing
the man grab for his hip, defendant told Moss to give him his gun, Moss
gave his gun to defendant, and defendant just turned around and
started shooting. Defendant did not recall pausing before taking the
gun from Moss (as shown in a video).
Defendant did not remember how far away the three men were
when he started shooting because the incident took place two years
before the trial. While defendant heard the police officer’s testimony
that from corner where the pizza store was located (intersection of
Cavallo Road and East 18th Street) to “the telephone pole in front of
1637 Cavallo” (where defendant took the gun from Moss, turned
around, and started to fire the gun) was 427 feet, defendant believed
that when he fired his shots the three men were not at the corner but
were located further north of the pizza store and closer to him.
Defendant did not know how many shots he fired but later learned he
fired 18 shots.
Defendant was not trying to kill anyone – his “intentions [were]
to back these people up off of me that could potentially take my life.”
When he started shooting, “they turned around and ran . . . [b]ack
south.” Although nobody shot back at him, defendant continued to fire
his gun as he also continued walking south. He thought they were
going to shoot at him, and that is why he shot at them. Because he felt
his life was in danger, defendant fired his gun “so many times”; he was
not thinking and it was just a reaction. Had his gun not run out of
9
bullets, defendant would have continued to fire even though the men
had turned their backs and ran away. He did not feel he could stop and
assess the situation and did not feel he had any other options.
Although defendant did not know when Reed was shot, he believed
Reed was partially facing him at the time Reed was shot in the
stomach. After he emptied his gun, he tossed the gun away and ran to
his apartment on Cavallo Road. Before and after he fired the shots, he
was “in panic mode,” his hands were shaking, his heart was pounding,
and he was nervous and scared.
The police later arrested defendant as he left his apartment. At
the police station, defendant learned his gunshots hit a passing vehicle
going through the intersection of Cavallo Road and East 18th Street,
but he did not intend to shoot at a car. Additionally, while defendant
was shown surveillance videos of “four people running away,”
defendant did not recall seeing a fourth man (John Doe 2) either
following him or at any point, and he did not know where that fourth
man was located before the shooting.
On cross examination, defendant testified that he spoke to his
mother after his arrest and told her that he was upset with Reed,
Qualls, and John Doe 1 because they had been “[h]igh powering” –
acting like they were better than defendant and Moss. Defendant
explained that “[w]hen you’re high-powering and walking up on people
like you want to fight them, and you go for your hip area, yeah, you’re
liable to get shot.”
C. Jury Instructions
Before closing arguments, the court advised the jurors that a
person “may intend to kill a specific victim or victims and at the same
10
time intend to kill everyone in a particular zone of harm or ‘kill zone.’ ”
The jury was instructed they could find defendant guilty of the
attempted murders of Reeds, Qualls, or John Doe 2, if the other
elements of attempted murder were satisfied and “defendant not only
intended to kill John Doe 1 but also either intended to kill John Doe 2,
Dexter Reed, and Odell Qualls, or intended to kill everyone within the
kill zone.”4
Defense counsel objected to the portion of the attempted murder
instruction that discussed the kill zone theory on the basis that there
was no substantial evidence to support a finding of guilt on a kill zone
theory. The prosecutor argued the jury might find the kill zone theory
applicable based on Qualls’ testimony, which “endorsed the idea that
John Doe 1 was the primary target.”
D. Prosecutor’s Closing Argument
4 Using the language in CALCRIM No. 600, the court advised the
jury, in pertinent part: “The defendant is charged in Counts 2, 3, 4, and
5 with attempted murder. To prove that the defendant is guilty of
attempted murder, the People must prove that: [¶] 1. The defendant
took at least one direct but ineffective step toward killing another
person; [¶] AND [¶] 2. The defendant intended to kill that person. [¶] . .
. [¶] A person may intend to kill a specific victim or victims and at the
same time intend to kill everyone in a particular zone of harm or ‘kill
zone.’ In order to convict the defendant of the attempted murder of
John Doe 2, Dexter Reed, and Odell Qualls, the People must prove that
the defendant not only intended to kill John Doe 1 but also either
intended to kill John Doe 2, Dexter Reed, and Odell Qualls, or intended
to kill everyone within the kill zone. If you have a reasonable doubt
whether the defendant intended to kill John Doe 2, Dexter Reed, and
Odell Qualls, or intended to kill John Doe 1 by killing everyone in the
kill zone, then you must find the defendant not guilty of the attempted
murder of John Doe 2, Dexter Reed, and Odell Qualls[.]”
11
In his initial closing argument, the prosecutor urged the jury to
rely on the kill zone theory to convict defendant of the attempted
murder of John Doe 2:
“So, let’s talk about John Doe 2, the mystery man, right? Because
this is the guy that nobody seems to know about. He’s the fourth man
running through the parking lot here. . . . [¶] So, the mystery man is
John Doe Number 2. He’s the listed victim in Count 5. And you might
be saying, Well, how could he be a victim of attempted murder since no
one even seems to know what he was doing there? And, I’ll tell you
how. It’s called kill zone. This is a theory, a doctrine under the law, that
says, that if a person is intending to kill a primary target, but they also
decide, . . ., I’m just going to kill everyone around that target to ensure
that I get my primary target, then that person has committed
attempted murder against all the people in the kill zone. [¶] . . . [¶]
“ . . . [T]he People’s theory of the case, what the evidence shows
you, is that John Doe 1 was the primary target. And who is John Doe
1? . . . [H]e’s the guy that everybody knows, but nobody knows well
enough to know his name, and he’s the third man in the argument, the
third man with Mr. Reed and Mr. Qualls. And he’s the one’s that
getting the most animated. He’s the one who is getting the angriest.
He’s the one who’s yelling the most inflammatory things. And he’s the
one who’s farthest in front.
“He’s also the one who, apparently, according to everyone
involved, is not a friend of the defendant. . . . Mr. Reed and Mr. Qualls
were at one time friends or at least friendly acquaintances of the
defendant. This mystery man, John Doe Number 1, who’s doing all the
yelling or the loudest yelling, apparently is not a friend of the
12
defendant. So, he is the primary target here. He’s the one that the
defendant originally wants to kill, but he’s not limiting himself to that
person. It’s like the guy surrounded by the bodyguards. If he has to
shoot everybody, he has to kill everybody around him in order to get to
John Doe 1, fuck it, why not? Right?
“Now, you can also conclude – that [defendant] just wanted to kill
Dexter Reed and Odell Qualls for their own reasons. I mean, Dexter
Reed got hit twice, so it seems likely maybe he was actually getting
specifically targeted too. So, it may not be that he was just around this
guy who was yelling. The evidence would suggest that actually the
defendant seemed to be paying some particular attention to Dexter
Reed.
“ And Odell Qualls . . . was yelling and gesturing too. So you
don’t have to put it all on this one guy, this one John Doe. Seems there
was evidence the defendant wanted to kill Dexter Reed, Odell Qualls,
and John Doe 1 all for their own reasons.
“But John Doe 2 . . . is a gentleman who falls within the kill zone.
It seems that he was uninvolved in this situation, and that the
defendant decided, I’ll just kill him because he’s too close, he’s with the
rest of them, so I’ll just kill everyone.”
In the defense closing, defense counsel addressed the
applicability of the kill zone theory for attempted murder:
“Now, I wanted to move on to the kill zone, and as [the
prosecutor] said, this is a theory that has to do with there being a
primary target and then other people nearby. The prosecutor has
decided that John Doe 1, the mystery man, has been the primary
target. I’m not sure how he comes to that conclusion. It seems to be
13
based on the . . . statements . . . [he said in his closing argument]. [¶]
[The prosecutor] said, John Doe 1 is not a friend of the defendant. . . . I
don’t know that that necessarily makes him an enemy or a primary
target for attempted murder. He’s somebody [defendant has] seen
before. We never heard that he had any problems with him. There’s no
evidence of that. [¶] Then [the prosecutor] said, John Doe 1 is the
person [defendant] originally intended to kill. Where’s the evidence of
that? We heard testimony from Odell Qualls. We heard testimony
from Dexter Reed. We heard testimony from [defendant]. And not one
of them said that [defendant] had an original intent to kill John Doe 1.
[¶] . . . [¶] So, thus, [the prosecutor has] concluded that John Doe 1 is a
primary target in this case. [¶] And then [the prosecutor] added, . . .
that there was also evidence that [defendant] wanted to kill . . . Qualls
and . . . Reed for his own reasons. Again, no evidence of that either. [¶]
So, this kind of goes back to intent to kill as well. I don’t think it’s been
proven to you based on this evidence here. [Defendant] was quite clear
that he wasn’t trying to . . . kill any of these people. He just wanted
them to stop following him, to stop coming up on them. And so I would
ask you to take that into account when looking at the kill zone
instruction.”
In rebuttal closing, the prosecutor again discussed the kill zone
theory:
“Now, again, let’s go back to Mr. Qualls. The defense attorney
said that I just selected John Doe 1 as the primary target, and that I
had no reason to do that. That’s not true. Odell Qualls said that John
Doe 1 is the primary target. He said he believed that because he was
the farthest forward, and he was the loudest, and he was the one who
14
was sort of getting most upset. So, it makes sense from that
standpoint. It all fits.
“Now, from my perspective, what I have been arguing all along, is
that all of the men were targets, Reed and Qualls and John Doe 1, and
only John Doe 2, he’s the only one who sort of is going to get killed
because he’s by them and is in the kill zone, but everyone else is part of
the argument. Everyone else had done something to participate in this
confrontation and, therefore, to make [defendant] angry.
“So, it’s not that I selected this. I’m - - in saying in the kill zone
instruction that John Doe 1 was the primary target, that was what Mr.
Quells believed. But I argued to you this morning, and I’ll continue to
argue to you, that the defendant was shooting at all of those people.
Mr. Qualls was loud and in the argument. Dexter Reed was in the
argument. Dexter Reed got shot twice. They were all targets.”
The prosecutor concluded his remarks by arguing, “And what
happened here is really, really clear. He got in an argument. He got
tired of these guys yelling at him. He grabbed a gun, and he fired 18
shots. And he would have fired a hundred, and he intended to kill
them all.”
E. Verdicts
The jury returned verdicts finding defendant guilty of shooting
into an occupied vehicle (count 1) and attempted willful, deliberate and
premeditated murders of Reed, Qualls, John Doe 1 and John Doe 2
(counts 2, 3, 4, 5), together with related true findings that defendant
personally and intentionally discharged a firearm causing great bodily
injury to Reed and White.
DISCUSSION
15
I. Kill Zone Theory Instruction Harmless as to Attempted
Murders of Reed and Qualls (Counts 2 and 3)
After defendant was convicted, our Supreme Court clarified the
appropriate jury instructions on the kill zone theory of attempted
murder. (People v. Canizales (2019) 7 Cal.5th 591, 596 (Canizales).)
Specifically, “a jury may convict a defendant under the kill zone theory
only when the jury finds that: (1) the circumstances of the defendant’s
attack on a primary target, including the type and extent of force the
defendant used, are such that the only reasonable inference is that the
defendant intended to create a zone of fatal harm — that is, an area in
which the defendant intended to kill everyone present to ensure the
primary target’s death — around the primary target and (2) the alleged
attempted murder victim who was not the primary target was located
within that zone of harm. 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 pp. 596-597.)
Defendant presents extensive argument, not specifically
challenged by the People, explaining why the trial court erred in
advising the jury on the kill zone theory for attempted murder in this
case. However, even assuming merit to defendant’s challenge to the
kill zone theory jury instructions, we conclude any instructional error
was harmless beyond a reasonable doubt as to the convictions for the
attempted murders of Reed and Qualls.5
5 Because we agree with the parties that the conviction for the
attempted murder of John Doe 2 should be dismissed for insufficient
evidence, as discussed in Point II, infra, we do not address whether we
should also reverse that conviction for instructional error in advising
16
If a trial court has erred in advising a jury on the kill zone theory
of attempted murder, we review for prejudice under the standard
enunciated in Chapman v. California (1967) 386 U.S. 18. When
applying this test, we “must reverse the conviction unless, after
examining the entire cause, including the evidence, and considering all
relevant circumstances, [we] determine[] the error was harmless
beyond a reasonable doubt.” (People v. Aledamat (2019) 8 Cal.5th 1,
13.) In other words, “we ask ‘whether it is clear beyond a reasonable
doubt that a rational jury would have rendered the same verdict absent
the error.’ ” (Canizales, supra, 7 Cal.5th at p. 615.)
In support of his argument that the kill zone instructions were
prejudicial, defendant asks us to consider portions of the prosecutor’s
closing argument, contending it was the “prosecutor’s self-proclaimed
‘theory of the case’ [] that John Doe 1 was the intended target” and
Reed and Qualls were in the kill zone. However, the prosecutor made
clear in rebuttal closing that it was the People’s position that defendant
specifically targeted Reed and Qualls, as well as John Doe 1, as those
men had been involved in the verbal argument with Moss that
precipitated the shooting, and the kill zone theory of attempted murder
only applied to defendant’s firing shots at John Doe 2. Thus, we reject
defendant’s argument that the prosecutor’s argument would have
encouraged the jury to rely on the kill zone theory in convicting
defendant of the attempted murders of Reed and Qualls.
Further, the record contains strong evidence that defendant
intended to target Reed and Qualls. Defendant specifically testified
the jury concerning the kill zone theory for the attempted murder of
John Doe 2.
17
that he fired his gun because he felt threatened by Reed, Qualls, and
John Doe 1, who had been verbally arguing with Moss, “making a lot of
hand gestures and arguing back and forth,” and they were “gaining on
us . . . coming closer to us.” As defendant explained, “[t]here is three
individuals walking up on us, and you go for your hip area. Where I
come from, you go for your hip area, you’re grabbing a gun. So it’s
either me or you in this situation, and I rather it be you.”
While defendant testified that he did not intend to kill the men
but rather fired his gun hoping to scare them away, he readily conceded
that once he fired the men immediately turned their backs and fled the
scene without returning any gunshots. Nonetheless, he continued to
fire a total of 18 shots, and managed to hit Reed twice. Although
defendant said he considered Reed and Qualls to be “friends,” he did
not hesitate in firing 18 shots towards “the two men who were [his]
friends,” because “[t]hey posed a threat to [his] life, so why would [he]
have any resentment [sic] of shooting them?” Given this evidence, it is
clear beyond a reasonable doubt that a rational jury would have
concluded defendant intended to target Reed and Qualls as well as
John Doe 1 and would have rendered the same verdicts absent any
instructions on the kill zone theory.
We reject defendant’s argument that his intent to specifically
target Reed and Qualls was called into question by his testimony that
he fired in a panic hoping to scare the men away or Qualls’ testimony
that he did not know why someone would fire shots at him and he
believed John Doe 1 was the intended target. Any question regarding
intent raised by this testimony was resolved by defendant’s admission
that when he fired his gun his intended targets included Reed and
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Qualls. This testimony was in harmony with Qualls’ admissions that
he put his hand in his pocket to suggest he was armed and participated
in the verbal altercation just before defendant fired his gun. While
shooting Reed twice is not dispositive of defendant’s intent, such
evidence coupled with defendant’s testimony demonstrates beyond a
reasonable doubt that Reed was an intended target of defendant’s
shooting spree.
In sum, even if the trial court erred in advising the jury on the
kill zone theory of attempted murder, any error was harmless beyond a
reasonable doubt as to the convictions for the attempted murders of
Reed and Qualls. Any reasonable jury would have found defendant
intended to target both Reed and Qualls specifically, thereby rendering
the same verdicts absent any kill zone instruction. The cases cited by
defendant are factually distinguishable and do not otherwise support a
different result.
II. Reversal of Attempted Murder of John Doe 2 (Count 5)
The parties agree defendant’s conviction for the attempted
murder of John Doe 2 should be reversed for lack of sufficient evidence.
We concur as the record demonstrates that neither defendant nor any
of the trial witnesses knew the identity of John Doe 2 and there was no
evidence as to John Doe 2’s location at the time defendant started to
fire his gun.
DISPOSITION
The conviction for attempted murder of John Doe 2 (count 5) is
reversed and the matter is remanded to the trial court with directions
to dismiss count five and for resentencing. (See Sanders v. Superior
Court (1999) 76 Cal.App.4th 609, 616 [when a conviction is reversed
19
based on insufficient evidence retrial on the same charge is barred by
the Double Jeopardy Clause, citing Burks v. United States (1978) 437
U.S. 1, 18].)
In all other respects, the judgment is affirmed.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Chou, J.*
People v. Stelly/A157142
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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