In re Sambrano

Filed 6/9/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
E078147
In re JESSIE SAMBRANO
(Super.Ct.No. INF051722
on Habeas Corpus.
OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. James S.
Hawkins, Judge. Petition granted.
The Law Offices of Aaron J. Schechter and Aaron J. Schechter for Petitioner.
Rob Bonta, Attorney General, Lance W. Winters, Chief Assistant Attorney
General, Daniel Rogers, Lise S. Jacobson, and Christopher P. Beesley, Deputy Attorneys
General, for Respondent.
In this habeas corpus proceeding, Jesse Espinoza Sambrano seeks reversal of his
attempted murder convictions because his jury was given a kill zone instruction that is
erroneous under People v. Canizales (2019) 7 Cal.5th 591 (Canizales). The People
concede the error but argue that it was harmless beyond a reasonable doubt. We disagree
and grant the petition.
1
We publish this opinion in order to reiterate the following principles concerning
the kill zone theory:
If there is no evidence of a primary target, then the kill zone theory does not apply.
(Canizales, supra, 7 Cal.5th at p. 608 [“evidence of a primary target is required”].)
Relatedly, if the evidence shows only that the defendant intended to kill everyone
in a particular area, but not as a means of ensuring the death of a primary target, then the
kill zone theory does not apply. (Canizales, supra, 7 Cal.5th at p. 607 [a kill zone is “an
area in which the defendant intended to kill everyone present to ensure the primary
target’s death”].)
If there is evidence of a primary target, but the evidence shows only that the
defendant subjected people near the primary target to lethal risk, or that the defendant
acted with conscious disregard of the risk of serious injury or death for people near the
primary target, then the kill zone theory does not apply. (Canizales, supra, 7 Cal.5th at
p. 607.)
Jury instructions on the kill zone theory are never required. (People v. Stone
(2009) 46 Cal.4th 131, 137-138 (Stone); People v. Smith (2005) 37 Cal.4th 733, 746
(Smith); People v. Bland (2002) 28 Cal.4th 313, 331, fn. 6 (Bland).)
BACKGROUND
The following facts are taken from this court’s unpublished opinion on
Sambrano’s direct appeal, People v. Sambrano (Nov. 15, 2013, E054725) [nonpub. opn.],
and the record in that appeal. (See In re Taylor (2019) 34 Cal.App.5th 543, 556-557.)
2
We describe only those facts relevant to the attempted murder convictions and the kill
zone theory.
Sambrano and his two codefendants, Anthony Lares and Daniel Torres, are all
alleged members or associates of a gang called Varrio Coachella Rifa 52 (Varrio
Coachella). On the night in question, they drove into the territory of a rival gang, North
Side Indio (North Side). Sambrano drove the car, Torres was the front passenger, and
Lares was in the back seat. After repeatedly driving past a group of people gathered
outside a house, Sambrano stopped the car, and Lares and Torres began shooting. Lares
admitted firing at least 10 rounds from his .30–caliber M1 carbine rifle. Torres fired an
unknown number of shots from a .22–caliber handgun that held five rounds. The shots
killed one person and seriously wounded two others, all of whom were outside the house
at the time of the shooting.
At trial, the parties disagreed about the motivation for the shooting. The
prosecutor’s theory was that the shooting was gang related, specifically that Sambrano,
Lares, and Torres were retaliating for a rival gang’s graffiti in Varrio Coachella territory,
near the home of Sambrano’s godmother. The prosecutor presented both photos
depicting the allegedly offending graffiti and expert testimony regarding the general
significance of gang graffiti and the particular significance of a gang’s leaving its graffiti
in the territory of a rival. In this case, North Side not only left graffiti in Varrio
Coachella territory but also obliterated Varrio Coachella’s own gang graffiti, which the
expert opined would be viewed by Varrio Coachella members as disrespectful.
3
According to the expert, when a gang member believes they have been disrespected, they
must retaliate with violence. Otherwise, the status of both the gang and the member
would be diminished.
Both Sambrano and Lares eventually admitted that they were involved in the
shooting. Lares claimed that they had been looking for a girl he knew, who lived
somewhere in the neighborhood. While looking for her, they passed by the gathering in
front of the house. When they drove by a second time, Torres fired at the group. But
Lares was hallucinating as a result of various substances he had ingested, and he thought
shots had been fired at them from the group outside the house. That is why he fired back
with the M1 rifle, which he kept in the trunk of the car for protection.
Sambrano told law enforcement officers that on the evening of the shooting he
was driving his companions around to try to find a girl he knew, concerning a matter
unrelated to the graffiti, and he did not know that his companions had guns. Sambrano
claimed that he drove past the house at least once, turned the car around, and drove back
to see if the girl they were looking for was among the people outside the house. He was
just pulling up to the curb in front of the house and about to park the car when he heard
seven or eight gunshots, after which Lares opened fire from the back seat. Sambrano
then immediately pulled away from the curb and drove off.
The Rodriguez family lived in the house where the shooting occurred. Jacob
Rodriguez and his girlfriend had just walked out the front door when the gunfire started.
Jacob’s girlfriend was hit by three bullets and died. Jacob and another attendee who was
4
standing outside were hit by bullets too, but they survived. The four remaining attempted
murder counts involved four people who were inside the house when the shooting
occurred. Three of them were children. None was hit by a bullet.
DISCUSSION
A. Timeliness
The People argue that Sambrano’s habeas petition is procedurally barred as
untimely. We are not persuaded.
“Whether a claim has been timely presented is assessed based on an indeterminate
reasonableness standard.” (Robinson v. Lewis (2020) 9 Cal.5th 883, 890 (Robinson).)
We assume for purposes of our analysis that as of the Supreme Court’s issuance of
Canizales in June 2019 (Canizales, supra, 7 Cal.5th at p. 591), Sambrano “‘“knew, or
reasonably should have known, of the information offered in support of the claim and the
legal basis for the claim”’” (In re Reno (2012) 55 Cal.4th 428, 460, superseded by statute
on another ground as stated in In re Friend (2021) 11 Cal.5th 720, 727-729). Sambrano
is not a lawyer, and he was not represented by a lawyer between 2013 and 2021. In 2021,
a lawyer was appointed to represent Sambrano on appeal from the denial of a
resentencing petition under Penal Code section 1170.95. This habeas petition was filed
by Sambrano’s attorney about two months later.
We conclude that given these circumstances the habeas petition was timely filed
under the applicable “indeterminate reasonableness standard.” (Robinson, supra, 9
Cal.5th at p. 890; see also In re Saunders (1970) 2 Cal.3d 1033, 1040 [delay of nearly
5
five years was justified given that the petitioner “had only a ninth grade education and
was without experience or education in law”].)
B. Canizales and the Kill Zone Theory
“The elements of attempted murder are ‘specific intent to kill and the commission
of a direct but ineffectual act toward accomplishing the intended killing.’ [Citation.]
‘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.’ [Citation.] But consistent with those
requirements, the kill zone theory, which was first approved by the Supreme Court in
[Bland, supra, 28 Cal.4th at pp. 327, 330], ‘yields a way in which a defendant can be
guilty of the attempted murder of victims who were not the defendant’s “primary
target.”’” (People v. Cardenas (2020) 53 Cal.App.5th 102, 111 (Cardenas).)
In Canizales, the Supreme Court reexamined the kill zone theory and clarified its
scope. (Canizales, supra, 7 Cal.5th at p. 606; Cardenas, supra, 53 Cal.App.5th at
p. 112.) Canizales held “that the kill zone theory for establishing the specific intent to
kill required for conviction of attempted murder may properly be applied only when a
jury concludes: (1) the circumstances of the defendant’s attack on a primary target,
including the type and extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create a zone of fatal harm—that is,
an area in which the defendant intended to kill everyone present to ensure the primary
6
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.”
(Canizales, at p. 607.)
The Supreme Court further explained that “the kill zone theory does not apply
where ‘the defendant merely subjected persons near the primary target to lethal risk.’”
(Canizales, supra, 7 Cal.5th at p. 607.) The Supreme Court emphasized that “‘in a kill
zone case, the defendant has a primary target and reasons [that] he cannot miss that
intended target if he kills everyone in the area in which the target is located. In the
absence of such evidence, the kill zone instruction should not be given.’” (Ibid., quoting
People v. Medina (2019) 33 Cal.App.5th 146, 156 (Medina).) The court also rejected the
Attorney General’s argument “that for the kill zone theory to apply it is not necessary that
the defendant have a primary target.” (Canizales, at p. 608.) The court concluded to the
contrary that in order for the kill zone theory to apply, “evidence of a primary target is
required.” (Ibid.)
C. Retroactivity of Canizales
In general, we will not issue a writ of habeas corpus for “an issue which was
raised and rejected on direct appeal, or which could have been, but was not, raised on
direct appeal.” (In re Saldana (1997) 57 Cal.App.4th 620, 627.) “An exception to the
rule applies ‘“when there has been a change in the law affecting the petitioner.”’” (In re
7
Rayford (2020) 50 Cal.App.5th 754, 770 (Rayford); In re Terry (1971) 4 Cal.3d 911, 916
[new United States Supreme Court decision justifies habeas corpus petition on issue not
previously raised]; In re Harris (1993) 5 Cal.4th 813, 841, disapproved on another
ground in Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 854, fn. 5.) “‘To trigger this
exception, the change in the law must have retroactive effect.’” (Rayford, supra, at
p. 770.)
The Supreme Court did not state whether Canizales applies retroactively to final
judgments. (Canizales, supra, 7 Cal.5th at pp. 602-618.) Relying on Rayford, supra, 50
Cal.App.5th 754, Sambrano argues that Canizales applies retroactively to cases like his
that were final when the decision issued, because it substantively changed the law on the
kill zone theory. The People agree, and so do we.
Applying both federal and state law retroactivity standards, Rayford held that
Canizales, supra, 7 Cal.5th 591, applies retroactively to cases in which the judgment is
already final. (Rayford, supra, 50 Cal.App.5th at pp. 770-778.) Rayford concluded that
Canizales affected a substantive change in the law. (Rayford, at pp. 776-778.) Rayford
further explained that Canizales “altered the range of conduct for which a defendant may
be tried and convicted of attempted premeditated murder by holding trial courts should
only instruct the jury on the kill zone theory of concurrent intent where ‘there is sufficient
evidence to support a jury determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill everyone in the zone of
fatal harm.’” (Rayford, at p. 777.)
8
We agree with Rayford’s analysis and conclusion. Canizales applies retroactively
to Sambrano’s case even though the judgment was final when Canizales was decided.
D. The Kill Zone Jury Instruction Was Erroneous
On the attempted murder counts, the trial court instructed the jury with former
CALCRIM No. 600, stating that Sambrano could be found guilty of attempted murder if
he created a kill zone and intended to kill everyone within that zone.1 The jury also was
instructed that it could find Sambrano guilty of attempted murder if he intended to kill
each of the six victims specifically. In closing argument, the prosecutor relied almost
exclusively on the kill zone theory in arguing that Sambrano possessed the necessary
mental state for the attempted murder counts.
In Canizales, the jury was instructed with the same version of CALCRIM No. 600
given here. (Canizales, supra, 7 Cal.5th at p. 601 & fn. 3.) Canizales concluded that the
instruction did not accurately describe the kill zone theory. (Id. at pp. 609, 613.)
Canizales explained that the instruction was flawed because it did not adequately define
the term “kill zone” and failed to direct the jury to consider the circumstances of the
attack in determining whether the defendant’s attempt to kill everyone around the
1 The jury was instructed that the prosecution had to prove two elements to prove
attempted murder: “1. The defendant took at least one direct but ineffective step toward
killing another person; [¶] AND [¶] 2. The defendant intended to kill that person.” The
jury was instructed as follows concerning the kill zone theory: “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.’ A person need not be aware of other victims in the
‘kill zone.’ In order to convict the defendant of the attempted murder of [the six alleged
victims], the People must prove that the defendant not only intended to kill a person at
the gathering but also either intended to kill [the six alleged victims] or intended to kill
everyone within the kill zone.”
9
primary target was undertaken as a mean of killing the primary target. (Ibid.) The
Supreme Court recommended that the instruction be revised. (Id. at p. 609.)
Sambrano argues that the trial court erred by giving the same flawed version of
CALCRIM No. 600 given in Canizales, and the People concede the point. We agree with
the parties. It was error to instruct the jury with the former version of CALCRIM No.
600. In addition to the flaws in the instruction identified by the Supreme Court in
Canizales, the instruction did not require the jury to find that Sambrano specifically
intended to kill everyone in the area around the primary target as a means of killing that
primary target, which is required for application of the kill zone theory. (Canizales,
supra, 7 Cal.5th at p. 607.) Indeed, the instruction did not define a kill zone in terms of a
primary target at all—it did not even state that a kill zone is an area in which the primary
target is located.
We note that CALCRIM No. 600 was heavily revised in light of Canizales, and it
is now considerably longer and more complex than the version given at Sambrano’s trial.
But even the current, revised version of the instruction largely retains one of the defects
we have identified. In articulating the elements of the kill zone theory, the revised
instruction does not require the jury to find that the defendant intended to kill everyone in
the area around the primary target in order to ensure the death of the primary target.
Instead, the revised version provides: “A person may intend to kill a primary target and
also [a] secondary target[s] 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
10
everyone in the area around the primary target.” (CALCRIM No. 600, italics added.)
Again, Canizales clarified that unless the defendant intended to kill everyone in the area
around the primary target in order to effectuate the killing of the primary target, the kill
zone theory does not apply. (Canizales, supra, 7 Cal.5th at p. 607 [a kill zone is “an area
in which the defendant intended to kill everyone present to ensure the primary target’s
death”]; ibid. [“‘[I]n a kill zone case, the defendant has a primary target and reasons
[that] he cannot miss that intended target if he kills everyone in the area in which the
target is located. In the absence of such evidence, the kill zone instruction should not be
given’”].) The revised instruction’s only allusion to that requirement appears in the last
sentence of the instruction, which tells the jury, “If you have a reasonable doubt whether
the defendant . . . intended to kill [the primary target] by killing everyone in the kill zone,
then you must find the defendant not guilty of the attempted murder of [the other people
in the zone].” (CALCRIM No. 600.) But jurors might well be confused when they
discover in the final sentence that a reasonable doubt about whether the defendant
intended to kill the primary target by killing everyone in the kill zone requires them to
find the defendant not guilty, given that nowhere else does the instruction say an intent to
kill the primary target by killing everyone in the kill zone is required.
In Canizales, the Supreme Court “emphasize[d] that going forward trial courts
must exercise caution when determining whether to permit the jury to rely upon the kill
zone theory. Indeed, we anticipate there will be relatively few cases in which the theory
will be applicable and an instruction appropriate.” (Canizales, supra, 7 Cal.5th at
11
p. 608.) Moreover, the Supreme Court has repeatedly explained that jury instructions on
the kill zone theory are never required.2 (Stone, supra, 46 Cal.4th at pp. 137-138; Smith,
supra, 37 Cal.4th at p. 746; Bland, supra, 28 Cal.4th at p. 331, fn. 6.)
Given the Supreme Court’s words of caution, the apparently ongoing difficulty in
crafting an error-free instruction on the kill zone theory, and the absence of any
requirement to give a kill zone instruction, it is not clear why it would ever be prudent to
give such an instruction. It appears easy to commit error by instructing the jury on the
kill zone theory, but it is literally impossible to err by declining to do so.3
E. The Error Was Prejudicial
Canizales held that the then-current version of CALCRIM No. 600 presented the
jury with a “legally inadequate theory” (Canizales, supra, 7 Cal.5th at p. 613) because it
provided “no adequate definition to enable the jury to determine whether the [kill zone]
theory was properly applicable” (id. at p. 615). “[W]e therefore consider whether the
2 CALCRIM No. 600 introduces the kill zone instruction with the following
bracketed note: “.” The note is erroneous, because
kill zone instructions are never required. (Stone, supra, 46 Cal.4th at pp. 137-138; Smith,
supra, 37 Cal.4th at p. 746; Bland, supra, 28 Cal.4th at p. 331, fn. 6.) An accurate note
would be: . In addition, to remove any potential ambiguity, it might be helpful if the
bench notes for CALCRIM No. 600 included a direct statement that kill zone instructions
are never required, citing Stone, Smith, and Bland.
3 If a court deems it appropriate to instruct a jury on the kill zone theory, the
instruction could arguably be reduced to a single sentence (and without use of the term
“kill zone”) along something like the following lines: If, having considered all the
circumstances of the attack, you find beyond a reasonable doubt that the defendant
intended to kill by killing everyone in the area in which
was located, then you may infer, but are not required to
infer, that the defendant intended to kill everyone in that area.
12
error in instructing the jury was harmless beyond a reasonable doubt under Chapman v.
California (1967) 386 U.S. 18.” (Rayford, supra, 50 Cal.App.5th at p. 781.)
The People argue that the erroneous kill zone instruction was harmless beyond a
reasonable doubt because “there is no way” that a properly instructed jury “could have
concluded anything other than that the shooters intended to create and did create a zone
of fatal harm.” We disagree.
Contrary to the People’s argument, the kill zone theory is categorically
inapplicable to this case. There is no evidence that any person at the gathering in front of
the Rodriguez house was the primary target of defendants’ attack. There is no evidence
that Sambrano knew or recognized anyone at the gathering or that the Rodriguez house
had been defendants’ planned destination. Moreover, there is no evidence that any
particular person at the gathering did or said anything that might have led defendants to
target a particular person when the shooting commenced. Instead, the evidence showed
only that defendants began firing at the group because of the group’s location within rival
gang territory. Because there was no evidence of a primary target, the kill zone
instruction should not have been given. (Canizales, supra, 7 Cal.5th at p. 608; Cardenas,
supra, 53 Cal.App.5th at p. 118 [“without a primary target, the kill zone theory is
categorically inapplicable”]; Medina, supra, 33 Cal.App.5th at p. 156 [“a kill zone
instruction is not appropriate where a defendant fires a deadly weapon into a group of
individuals with the intent to kill but without a primary target” “even if the defendant
13
intends to kill everyone in that group”]; People v. Mariscal (2020) 47 Cal.App.5th 129,
139 [“the kill zone theory only applies when there is an intended victim”].)
The absence of evidence of a primary target did not, however, enable the jury to
determine that the kill zone theory did not apply, because the erroneous instruction did
not tie the definition of a kill zone to a primary target. Rather, the jury might have
applied the kill zone theory by reasoning that Sambrano “intend[ed] to kill everyone in a
particular zone of harm or ‘kill zone,’” even though as a matter of law the theory did not
apply because there was no evidence of a primary target.
The prosecutor’s closing argument exacerbated the problem. The prosecutor
relied almost exclusively on the kill zone theory—which does not apply to this case at
all—in arguing that Sambrano possessed the necessary mental state for attempted murder.
Moreover, the prosecutor’s argument erroneously articulated the kill zone theory in terms
of a “zone of danger” and informed the jury that a primary target was not necessary: “So
in this case, in going back to as I told you what I’ll say 100 times, they had the intent to
kill everyone there, ladies and gentlemen, within and without the residence. [¶] When
you fire bullets like that, you create a zone of danger. It’s called concurrent intent. You
may have a target in mind, you may not, you may just be shooting to kill everyone, but
you’ve set a zone of danger. And when you do that, you’re attempting to kill everyone
within that zone whether you know they’re there or not.” The prosecutor further
explained: “If you open fire on a group of people with high-powered weapons, you’ve
created a zone of danger. You may have no target in mind. Same with the plane. Let’s
14
say [a particular person] just got on the plane and someone just wanted to blow it up.
Doesn’t matter; all right? You still have the concurrent intent and you’re still liable for
everyone else that you tried to kill that’s in that zone. Does that make sense. [¶] Does
that make sense that when you have an area that you’ve opened fire on, you’ve created a
zone of danger, a kill zone, and that anyone in there you’re liable for?”
The prosecutor’s argument erred in two ways: It told the jury that the kill zone
theory can apply even if there is no primary target (“You may have a target in mind, you
may not”; “You may have no target in mind”), and it told the jury that creating a “zone of
danger” is sufficient for attempted murder liability. But a kill zone is not merely a zone
of danger. As the Supreme Court explained in Canizales, “the kill zone theory does not
apply where ‘the defendant merely subjected persons near the primary target to lethal
risk.’” (Canizales, supra, 7 Cal.5th at p. 607.) Thus, as in Canizales, the prosecutor’s
description of the kill zone as a zone of danger “was significantly broader than a proper
understanding of the theory permits. Indeed, it essentially equated attempted murder with
implied malice murder.” (Id. at p. 614.) “Thus, the prosecutor’s argument had the
potential to mislead the jury to believe that the mere presence of a purported victim in an
area in which he or she could be fatally shot is sufficient for attempted murder liability
under the kill zone theory.” (Ibid.) And the “legally erroneous argument was particularly
prejudicial because the prosecutor relied almost exclusively on the kill zone theory in
support of the attempted murder counts.” (Cardenas, supra, 53 Cal.App.5th at p. 118.)
15
Given that (1) the jury should not have been instructed on the kill zone theory at
all, (2) the instruction’s description of the kill zone theory was erroneous, (3) the
prosecutor relied almost exclusively on the kill zone theory in arguing that Sambrano had
the necessary mental state for attempted murder, and (4) the prosecutor’s argument
concerning the kill zone theory was likewise erroneous, we cannot conclude beyond a
reasonable doubt that a properly instructed jury would not have reached a verdict more
favorable to Sambrano. Accordingly, the convictions on the attempted murder counts
must be reversed.
DISPOSITION
The petition for writ of habeas corpus is granted. The six attempted murder
convictions (counts 3, 4, 8, 9, 10, & 11) are vacated. We remand the matter to the trial
court with directions to allow the People to choose whether to retry Sambrano on the
attempted murder counts.
CERTIFIED FOR PUBLICATION
MENETREZ
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.
16