People v. Ponciano CA4/1 ( 2024 )

Filed 9/9/24 P. v. Ponciano CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082991
Plaintiff and Respondent,
v. (Super. Ct. No. FSB20002540)
ROBERTO CARLOS PONCIANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Alexander R. Martinez, Judge. Affirmed.
Sylvia W. Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury found Roberto Carlos Ponciano guilty of second-degree murder
as to victim Ruben Colunga (Pen. Code,1 § 187, subd. (a)) and attempted
murder as to victim Gary M. (§§ 664, subd. (a) & 187, subd. (a)). Defendant
contends on appeal that the trial court prejudicially erred by: (1) instructing
the jury on a “kill zone” theory of attempted murder liability because the
evidence did not support the theory that Colunga was the primary target;
and (2) giving a kill zone instruction that was an incorrect statement of law.
We conclude there was sufficient evidence to support the kill zone
theory with Colunga as the primary target, and that the instruction correctly
stated the law. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Evidence
In July 2020, Mario S. and his partner hosted a fundraising party in
their backyard to help cover a friend’s funeral expenses. Late in the evening,
defendant’s older brother Francisco Ponciano, who had consumed about 10
alcoholic drinks at the gathering, was kicked out of the party for engaging in
sexual acts with a woman in front of other guests and children. Francisco
and the woman returned shortly thereafter to retrieve the woman’s purse,
but some party guests stopped them from going into the yard. Francisco
testified at trial that some of those guests also attacked them and blocked his
car from leaving. He said he was punched a few times through his open
driver’s side window by two people. Gary M., who was in front of the house
during the altercation, told detectives that Colunga may have been one of the
people who punched Francisco. Witnesses testified that sometime after
Francisco left the party, he sped by the house in his car several times.
1 Further undesignated statutory references are to the Penal Code.
2
Cell phone logs and location data admitted at trial showed that
Francisco exchanged several calls with his younger brothers—defendant and
Oscar Ponciano—between 11:30 p.m. and midnight. At 11:37 p.m., Oscar
texted his girlfriend, “Damn dude, my bro just called me [right now] he got
fucked up.” A minute later he texted her, “Shit’s about to go down.”
At 11:45 p.m., defendant texted Oscar, “Let’s go.” A minute later, he
texted Oscar again, saying “He said the foo is still there[]” and “Letta go.”
Oscar texted back, “You can’t get a heat?” A detective testified that “heat”
commonly refers to a firearm or gun. Soon after, defendant drove with Oscar
to the street where the party was happening in defendant’s Dodge Ram 1500
truck. Witnesses said that when the truck arrived, it also sped up and down
the street, revving its engine.
Around 11:55 p.m., Francisco called a co-worker and talked about going
to do “something stupid.” Surveillance video showed that around 12:00 a.m.,
Francisco’s car pulled up to defendant’s truck at an intersection near the
party, with the vehicles’ driver’s side windows facing towards each other.
Francisco and defendant spoke briefly, then parted ways. Defendant drove
his truck down the street a short distance before turning around and coming
back to drive past a group of men, which included Gary M., Colunga, and
Mario S. At about 12:01:16 a.m., Mario S. threw a beer bottle at defendant’s
truck as it drove by.
Although at trial Oscar denied that defendant was angry that night,
Oscar told detectives during an interview that the fact that someone threw
something at the truck likely “set [defendant] off” because he “likes his truck
a lot[.]” Oscar also told detectives that defendant said something like “fuck
these fools” as he turned his truck toward Gary M. and Colunga and plowed
into them. After hitting Gary M. and Colunga, the truck rammed into the
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edge of a brick retaining wall with enough force to break it into pieces.
Gary M. survived and suffered a broken leg and nerve damage. Colunga died
from multiple blunt force injuries.
Surveillance video shows that about three seconds before impact,
Gary M. held his arms out from his body and lifted his hands toward the
truck as if to shoot. There was no evidence that Gary M. was armed, but he
told detectives he pretended to point a gun at the truck when it came towards
him to deter the driver. Oscar said he saw someone pointing a gun at them,
and when he alerted defendant, they both ducked right before impact.
B. Kill Zone Jury Instruction
The People charged defendant with Colunga’s murder. (§ 187, subd.
(a).) As to Gary M., the People charged defendant with premeditated
attempted murder, with an enhancement for personally inflicting great bodily
injury. (§§ 187, subd. (a), 664, 12022.7, subd. (a).) When the parties
discussed jury instructions with the court, the trial judge said he intended to
include bracketed language addressing the kill zone theory in the jury
instruction on attempted murder (CALCRIM No. 600). The prosecutor
agreed the language should be included. Defense counsel said he did not
“think the kill zone [jury instruction] [was] appropriate,” but otherwise
submitted without further argument.
Before closing arguments, the court instructed the jury on attempted
murder and included the following language:
“A person may intend to kill a primary target and also a
secondary target within a zone of fatal harm or ‘kill zone.’
A ‘kill zone’ is an area in which the defendant used lethal
force that was designed and intended to kill everyone in the
area around the primary target.
“In order to convict the defendant of the attempted murder
of [Gary M.], the People must prove that the defendant not
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only intended to kill Ruben Colunga, but also either
intended to kill [Gary M.], or intended to kill everyone
within the kill zone.
“In determining whether the defendant intended to kill
[Gary M.], 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;
and (2) [Gary M.] was located within the kill zone.
“In determining whether the defendant intended to create a
‘kill zone’ and the scope of such a zone, you should consider
all of the circumstances including, but not limited to, the
following: [¶] The type of weapon used; [¶] The distance
between the defendant and [Gary M.]; [¶] The distance
between [Gary M.] and the primary target.
“If you have a reasonable doubt whether the defendant
intended to kill [Gary M.] or intended to kill Ruben
Colunga by killing everyone in the kill zone, then you must
find the defendant not guilty of the attempted murder of
[Gary M.].” (CALCRIM No. 600.)
The prosecutor argued during closing that defendant intended to kill
Colunga. Specifically, he referred to defendant’s text saying that “the foo is
still there” and argued that defendant and Oscar went to the scene “to target
one single individual, the individual that had either punched or confronted
Francisco at the fundraiser.” Defense counsel noted in closing that it was
“unrefuted that Francisco was punched through his open window at least
twice.” He argued, however, that the collision was an accident because
defendant ducked after seeing Gary M. in a shooting stance. Neither party’s
counsel expressly addressed the kill zone theory during closing arguments.
The jury found defendant not guilty of first-degree murder and guilty of
second-degree murder as to Colunga. (§ 187, subd. (a).) The jury also found
defendant guilty of attempted murder as to Gary M. and found true that
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defendant personally inflicted great bodily injury on Gary M., but the jury
found not true the allegation that the attempted murder was willful,
deliberate, and premeditated. (§§ 664, subd. (a) & 187, subd. (a)).
DISCUSSION
Defendant contends on appeal that there was insufficient evidence to
support the jury instruction given on the kill zone theory of attempted
murder liability with Colunga as the primary target, and that the instruction
itself was an incorrect statement of the law. We disagree.
I
On review, we determine independently whether substantial evidence
supported a requested instruction. (People v. Shelmire (2005) 130
Cal.App.4th 1044, 1055.) An instruction on the kill zone theory is warranted
“if there was substantial evidence in the record that, if believed by the jury,
would support a reasonable inference that defendant intended to kill
everyone within the kill zone.” (People v. Canizales (2019) 7 Cal.5th 591,
609–610 (Canizales) [cleaned up].) As applied here, there must be:
(1) evidence regarding the circumstances of defendant’s attack on Colunga
“that would support a reasonable inference” that defendant intentionally
created a zone of fatal harm around Colunga, and (2) evidence that Gary M.
“was located within that zone of fatal harm.” (Id. at p. 610.) Such evidence,
taken together, would permit a finding that defendant harbored the requisite
intent to kill Gary M. “because he was within the zone of fatal harm” that
defendant intended to create around Colunga. (Ibid.)
Defendant contends the instruction was unwarranted because there
was “no explanation” for why Colunga should be considered the primary
victim. Specifically, he argues that although there is evidence Colunga may
have punched Francisco, “there was no evidence that [defendant] was aware
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of that possible event, nor that he would know” who assaulted Francisco. But
there was ample evidence presented at trial showing that defendant knew
Francisco had been attacked. Francisco testified that he spoke with either
defendant or Oscar while the assault was happening. Oscar testified that he
and defendant were both at their house when Francisco first called them that
night, and that defendant said they should go look for Francisco because it
sounded like he was “in trouble.” Cell phone records showed that Francisco
exchanged multiple calls with defendant in the half-hour leading up to the
incident, which indicates Francisco had opportunities to inform defendant
about being attacked.
Furthermore, Oscar texted his girlfriend, “Damn dude, my bro just
called me [right now] he got fucked up.” Oscar’s girlfriend testified that she
understood the text message to mean “that his brother had got jumped,” and
Oscar told detectives during an interview that someone “socked” Francisco
through his car window. Because evidence showed that Oscar and defendant
were together and in frequent communication with each other that evening,
it is reasonable to infer that defendant was aware of the same facts as Oscar.
Even defense counsel acknowledged in his closing argument that the fact of
Francisco getting punched was undisputed.
There is also substantial evidence to support a reasonable inference
that defendant knew Colunga was the person who assaulted Francisco, which
would make him the primary target. Gary M., who was present during the
altercation between Francisco and party guests, told detectives that Colunga
may have punched Francisco. About 15 minutes before the collision,
defendant texted Oscar, “He said the foo is still there.” That message
supports an inference that Francisco had identified Colunga as the person
who hit him, and that defendant intended to target him. The message is also
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consistent with other testimony showing that the reason defendant went to
the scene in the first place was to retaliate against whoever assaulted
Francisco.
After defendant arrived at the scene, both Francisco and defendant
drove by the party multiple times. A reasonable juror could infer from that
evidence that Francisco had the opportunity to identify Colunga to defendant
either directly or by a physical description, and that defendant also had the
opportunity to see Colunga himself. Moreover, surveillance video and
Francisco’s testimony showed that mere minutes before the collision,
Francisco and defendant spoke to each other at a nearby intersection. Both
video evidence and witness testimony placed Colunga in the same area when
that conversation occurred, which supports an inference that Francisco had
the opportunity to point out Colunga to defendant then. We conclude,
therefore, there was substantial evidence to support giving a kill zone
instruction because the evidence would permit a finding that defendant
intended to create a zone of fatal harm around Colunga as the primary target
in retaliation for his assault on Francisco. (See Canizales, supra, 7 Cal.5th at
p. 610.)
II
Defendant next contends that the kill zone instruction, as given, was
an incorrect statement of law. Specifically, defendant argues that the
instruction was erroneous because it did not require the jury to find he
intended to kill everyone in the area around the primary target “in order to
ensure the death of the primary target.” When the alleged error is that the
instructions misstate the law, we independently review the instructions to
determine whether they correctly conveyed the law, or “whether there is a
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‘reasonable likelihood’ that the jury understood the charge as the defendant
asserts.” (People v. Kelly (1992) 1 Cal.4th 495, 525.)
As defendant points out, CALCRIM No. 600 was revised after our
Supreme Court’s decision in Canizales, which held that the kill zone theory
does not apply unless the evidence shows the defendant intended to kill
everyone in a particular area as a means of ensuring the death of a primary
target. (See Canizales, supra, 7 Cal.5th at p. 607, fn. 5.) But as defendant
acknowledges in his opening brief, the trial court here used the revised
version of CALCRIM No. 600, which included language instructing the jury
that if there was “a reasonable doubt whether the defendant intended to kill
[Gary M.] or intended to kill [Colunga] by killing everyone in the kill zone,
then you must find the defendant not guilty of the attempted murder of
[Gary M.].” (CALCRIM No. 600, italics added.) Defendant claims the
instruction is faulty because the required language was not made “an
element” of the offense. We recognize that Justice Liu has criticized the
revised instruction for lack of clarity. (See People v. Mumin (2023) 15 Cal.5th
176, 223 (conc. opn. of Liu, J.) [observing that the revised instruction could
still lead to juror confusion].) We must, however, consider the instructions as
a whole and presume that “jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given.”
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 [cleaned up].) Moreover,
we interpret instructions, when possible, “so as to support the judgment
rather than defeat it if they are reasonably susceptible to such
interpretation.” (Ibid.)
The kill zone instruction given here did instruct the jury that if it had
“a reasonable doubt whether the defendant intended to kill [Gary M.] or
intended to kill [Colunga] by killing everyone in the kill zone,” then the jury
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could not find him guilty under that theory. (CALCRIM No. 600, italics
added.) It also defined the kill zone as “an area in which the defendant used
lethal force that was designed and intended to kill everyone in the area
around the primary target.” (Ibid., italics added.) The jury was admonished
to “pay careful attention to all” of the instructions and to “consider them
together.” (CALCRIM No. 200.) Considered in their entirety, these
instructions adequately informed the jury of the requirement that the
defendant “intended to kill everyone in the kill zone as a means of killing the
primary target . . . .” (Canizales, supra, 7 Cal.5th at p. 607, fn. 5, italics
added.) Because the kill zone instruction correctly conveyed the law to the
jury, we conclude the instruction was not erroneous and thus we need not
decide whether any error would have been harmless.
DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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