own gang, the Ramona Blocc Hustlas, resulting in the death of one of them. Both were
sentenced to prison for 90 years to life. They appealed raising various claims. In the
original opinion, filed August 19, 2014, we affirmed the convictions for both defendants,
but reversed Johnson’s sentence pursuant to People v. Gutierrez (2014) 58 Cal.4th 1354,
because, as a juvenile at the time of the crime, his sentence of 90 years to life was the
functional equivalent of a term of life without possibility of parole and we directed other
modifications of the sentence and abstracts of judgment.
On November 12, 2014, the California Supreme Court denied both defendants’
petitions for review, but, on its own motion, issued a grant-and-hold of review as to
defendant Johnson, for consideration pending review in In re Alatriste, S214652, In re
Bonilla, S214960, and People v. Franklin, S217699. On May 26, 2016, the Supreme
Court issued its decision in People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and
retransferred this case to our court with directions to vacate our opinion and to reconsider
Johnson’s sentence in light of Franklin. We vacated the original opinion and issued our
second opinion on September 28, 2016, affirming those portions of our original opinion
2
pertaining to issues not subject to the grant and hold, and reconsidered Johnson’s
sentencing claim in light of Franklin.
Defendants again petitioned for review. This time, the Supreme Court granted
review, deferring further action pending consideration and disposition of a related issue
in People v. Canizales, which was then pending in that court. Following the issuance of
that opinion, the Supreme Court retransferred the cases back to this court with directions
to vacate our opinion and to reconsider the cause in light of People v Canizales (2019) 7
Cal.5th 591, and People v. Perez (2016) 3 Cal.App.5th 612, 619. We do so now.
FACTS
Several months prior to June 2009, Marvin Moore and his best friend, Montoyea
Smith went to a Ramona Blocc Hustlas (RBH) gang party. Smith got into a fight with
two brothers, Quinn and Lamar Wise, who were also members of RBH, and were
Moore’s cousins. Defendant Windfield, also an RBH gang member, stepped in to help
the Wise brothers, and blindsided Smith with a punch. Moore was not actively engaged
in the fight, but he and others separated Smith from Windfield and the Wise brothers.
On June 11, 2009, there was another RBH gathering at an apartment complex on
East Jackson in Rialto. Ricky Peete was there with three female companions. After
midnight, Smith, a longtime friend of Peete’s, drove up. Later, Moore pulled up and
approached Smith. Smith was drunk and brought up the fight that had taken place a few
months earlier, expressing anger that Moore had not stepped in to help him. The two
3
men argued for a while about how Moore had failed him. Smith pulled out a hand gun
and cocked it, stating he wanted to shoot up the Ramona gang’s neighborhood.
After Smith displayed the gun, a van pulled up and parked across the street from
where Smith and Moore were arguing. The driver was defendant Windfield’s sister,
Jontre Windfield (Jontre). Defendants Windfield and Johnson were in the van along with
M.G. (the van’s owner) and her children, and a two other RBH gang members. When the
van parked, defendant Windfield got out and began to cross the street. When Smith saw
Windfield, he started yelling that Windfield had jumped him and pointed his gun at
Windfield. Windfield walked at a fast pace back toward the van, as defendant Johnson
got out of the vehicle. Smith chased both defendants around the van until the defendants
ran away through an alley.
Jontre and M.G. exited the van and Jontre yelled at Smith that there were women
and a child in the van. Smith pointed the gun in her face. Moore and Peete intervened,
restraining Smith, and the women got back into the van and drove away as Smith walked
back across the street. Jontre and M.G. then picked up the defendants and another of the
men who had left through the alley. As she drove back to the apartment on East Ramona
Drive, where she and the defendants lived, Jontre told defendants that Smith had pointed
his gun at her and stated several times that Smith had to die. Windfield was angry at
being chased away by Smith and said Smith had to be taken care of that night. After the
van left East Jackson, Smith put his handgun in his car and calmed down.
4
Minutes later, when the van arrived at the Ramona Drive residence, everyone went
inside except defendants. Johnson and Windfield each retrieved a firearm, took the keys
to the van from its owner, M.G., and left, after Windfield said that they were returning to
East Jackson.
Meanwhile, at the East Jackson apartment building, the police arrived in response
to a call about a fight, so Moore told Smith to put his gun away. The people who were
out on the street scattered at the arrival of police, leaving Moore and Nikki R. (Nikki),
outside. Moore and Nikki told police that the people involved in the fight had dispersed,
so the officers drove away. Smith then returned to the street where Moore talked to him
for about five minutes before driving away. Then Peete came out and talked to Smith.
While Peete and Smith were talking, Nikki heard the gate at the back of the
building slam and went to investigate. She saw defendants Windfield and Johnson in the
courtyard with guns and she told them they should leave, but they declined. Nikki
walked back towards the front of the building while the defendants stayed in the back.
Nikki told Peete what she had seen, but not Smith. When Smith started walking toward
the back, Nikki and Peete tried to stop him, telling him to go home, but Smith said he
needed to get his marijuana from the back. Peete went with him and they walked
shoulder to shoulder.
As Smith pushed past Nikki and Peete, defendants stepped forward and began
firing rapidly. Peete and Smith turned and stumbled into each other, and both fell. Peete
was hit in the leg and Smith fell on top of him, bleeding from his midsection. As Peete
5
and Smith lay on the ground, defendant Windfield stood over them, placed his gun to
Smith’s head, and fired a final shot. Then the defendants left.
After the defendants left, Peete, who had been shot once in the leg, got up, and left
in the car that Jontre had lent him earlier. Nikki ran into the East Jackson apartment and
told those present that defendants had run from the alley into the apartment courtyard and
shot Smith. Moore left the East Jackson Street apartment complex and drove to the
Windfields’ Ramona Drive residence to apologize to Windfield for Smith’s behavior.
Windfield said Smith was dead, and that “he had to go.” However, Windfield told Moore
that it was Johnson who shot Smith, not him. Moore left.
M.G. was at the Ramona Drive apartment when the defendant’s returned,
approximately one-half hour after they had left with the firearms. Johnson asked M.G. to
go to the Hustla Squad hood to drop his clothes off there, in order to implicate the Hustla
Squad in the shooting. 1
Afterwards, Windfield and Johnson discussed the shooting in the living room.
Windfield said he shot all his bullets at Smith, and Johnson demonstrated how he walked
over to Smith after he fell to the ground and shot him in his chest and face, holding the
gun in both hands. During this conversation, Jontre got a call from Peete who told her he
had been shot. Peete arrived at the apartment shortly after the call, limping and bleeding.
1 In 2008, Windfield was involved in and subsequently convicted of murder and attempted murder in the same gang related incident that led to the Supreme Court’s decision in People v. Canizales, supra, which involved the Hustla Squad.
6
Jontre drove Peete first to his mother’s house and then to the hospital. During the drive
to Peete’s mother’s house, Jontre said Smith had to die for putting the gun in her face.
The next day, at the Ramona Drive apartment, M.G. saw Windfield with Peete,
who was on crutches, outside the apartment. Windfield told Peete they had not intended
to shoot him. Back inside the apartment, Windfield told M.G. “he [Smith] had to go,”
because he had Windfield running like a “bitch.”
Smith had been hit by at least 10 shots, six of which would have been fatal
individually, including a shot fired approximately one-half inch from Smith’s head. The
cause of death was multiple gunshot wounds. Six bullets were recovered from Smith’s
body, all consistent with .25 caliber bullets. Peete had one bullet wound on the inside of
his right calf. A criminalist who processed the scene hours after the shooting recovered
seven .25 caliber casings and one nine millimeter casing.
Defendants were each charged with murder (Pen. Code, § 187, subd. (a), count
1), 2 attempted premeditated and deliberate murder (§§ 664, 187(a), count 2), and assault
with a semiautomatic firearm (§ 245, subd. (b), count 3). It was further alleged that in the
commission of counts 1 and 2, each defendant personally and intentionally discharged a
firearm causing death (§ 12022.53, subds. (d)), and that as to both defendants a principal
personally and intentionally discharged a firearm which proximately caused death
(§ 12022.53, subds. (d) & (e)(1)), as well as an allegation that the murder and attempted
murder were committed for the benefit of, at the direction of, or in association with a
2 All further statutory references are to the Penal Code unless otherwise indicated.
7
criminal street gang (§ 186.22, subd. (b)(1)(C)). It was further alleged that in the
commission of count 3, the defendants committed the crime for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(B)).
Following a trial by jury, defendants were convicted of all three counts. The jury
set the degree of the murder count respecting Smith at first degree, and found the
attempted murder of Peete was premeditated and deliberate. The jury found the
defendants had personally used and intentionally discharged a firearm causing death
(§ 12022.53, subd. (d)) and that a principal personally discharged a firearm causing death
(§ 12022.53, subds. (d) & (e)(1)). As to both counts 1 and 2, the jury found that
defendants committed them for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)(C)). The jury also convicted defendants of count 3, assault with a semiautomatic
firearm (§ 245, subd. (b)), during which they personally used a firearm (§ 12022.5, subd.
(a)) and which they committed for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)(B)). The defendants were each sentenced to aggregate indeterminate terms of 90
years to life on counts 1 and 2, while the term on count 3 was stayed pursuant to section
654.
Defendants appealed their convictions and sentences: 3 (1) that the admission of
the preliminary hearing testimony of Nikki impinged on their rights to confrontation; (2)
that their sentences were cruel and unusual given their youth; (3) the evidence of specific
intent to kill was insufficient to support the conviction for attempted murder on count 2
3Windfield originally argued only two issues in his opening brief, but he joined Johnson in the remaining substantive issues.
8
based on a “kill zone” theory; (4) the court erred in failing to instruct the jury that
provocation could reduce the attempted premeditated murder to attempted murder; (5) the
firearm use and discharge allegations must be stricken as to count 2 because the amended
information omitted such enhancements; (6) clerical errors on the abstract of judgment
required amendment. Separately, Johnson argues that (a) the court failed to pronounce
sentence; and (b) he was entitled to additional presentence custody credits.
Following the first appeal, we affirmed the substantive convictions as to both
defendants, but we directed the trial court to strike the allegation that a principal used and
discharged a firearm as to count 2, affirmed the sentence as to Windfield, who was 18 at
the time of the crimes, but ordered resentencing on Johnson, who was under the age of
18, pursuant to People v. Gutierrez (2014) 58 Cal.4th 1354, directed modification of
Johnson’s presentence credits, and amendment of the abstracts of judgment.
Defendants petitioned for review but their petitions were denied. However, on the
Supreme Court’s own motion as to Johnson, the Supreme Court granted review but
deferred briefing pending consideration and disposition of a related issue in In re
Alatriste, S214652, In re Bonilla, S214960, and People v. Franklin, S217699 (now at
People v. Franklin (2016) 63 Cal.4th 261). After the decision in Franklin was filed, the
matter as to Johnson was returned to us with directions to vacate our decision and
reconsider the cause in light of Franklin. On September 28, 2016, we published our
second opinion, republishing the portions of the opinion unaffected by the grant of
9
review, but affirming in part and reversing in part as to Johnson. Both defendants again
petitioned for review. 4
On January 11, 2017, the California Supreme Court granted the second set of
petitions for review, but deferred further action pending consideration and disposition of
the related issue in People v. Canizales, S221958 (now at People v. Canizales (2019) 7
Cal.5th 591 (Canizales)). Following the issuance of the decision in Canizales, the
Supreme Court has retransferred the matter to us with directions to vacate our decision
and reconsider the cause in light of Canizales, supra, and People v. Perez (2016) 3
Cal.App.5th 612, 619 (Perez). We vacated our opinion and now reconsider it in light of
Canizales and Perez.
ISSUES AND DISCUSSION
1. Admission of Nikki’s Preliminary Hearing Testimony
Both defendants argue that the court erred in admitting the audio and video
recording of the preliminary hearing testimony of Nikki because the People failed to
demonstrate she was unavailable, and failed to exercise due diligence to secure her
attendance. We disagree.
We determine de novo whether due diligence was demonstrated. (People v.
Bunyard (2009) 45 Cal.4th 836, 851; People v. Cromer (2001) 24 Cal.4th 889, 892, 893
(Cromer).)
4We reversed and remanded Johnson’s sentence. With the benefit of the developing body of law on the Franklin issue, we have modified the disposition to reflect a remand for a hearing at which Johnson may make a record of his youth as mitigation under Franklin.
10
a. Background
After testifying at the preliminary hearing, Nikki moved out of state in October
2009, with financial assistance provided by the district attorney’s office. She provided
her address to a district attorney investigator, Christine Murillo, who spoke to Nikki by
phone to confirm she had arrived safely. The investigator did not recontact Nikki until
2010.
In October 2010, Murillo checked various automated databases in both California
and the state to which Nikki had moved and found no new information. Murillo
contacted an investigator for the prosecutor’s office in the state where Nikki had
relocated to request follow-ups on all the addresses found. The investigator for the out-
of-state jurisdiction checked every address that had been found for the next two to three
weeks. Nikki had not been living at her last known address for 30 days before contact
was made with the manager at the apartment complex where she had lived.
The investigator for the local prosecutor’s office in the state to which Nikki had
relocated checked with Nikki’s relatives in that area; however, they had not seen or heard
from Nikki for several weeks. That investigator for the local prosecutor’s office went to
the social service agency that provided money to Nikki while she was living in the place
where she had relocated and was informed that she had failed to appear for her last
couple of appointments with the agency to pick up funds it had for her.
In November 2010, Murrillo called Nikki’s friend, Jasmine, who said that she had
heard from Nikki three weeks before, but had no way to contact Nikki. Murillo contacted
11
Jasmine a second time a few weeks later, but Jasmine reported that she had not heard
from Nikki and had no contact information for her. Jasmine, again, told the investigator
that she would have Nikki call the investigator if Nikki contacted her. Murillo also called
Detective Williams, the case agent, in November 2010, and asked him to contact her if he
heard anything on the street about Nikki’s whereabouts. In January, April, and May
2011, Murillo reran Nikki through the available automated systems in California and the
state to which Nikki had relocated.
Detective Williams had not tried to stay in contact with Nikki after she relocated,
following the October 2009 preliminary hearing, but the prosecutor asked him to locate
Nikki in the fall of 2010. Starting in September 2010, and for more than three months, he
spoke to 50 or 60 people in Rialto and surrounding communities who may have known
Nikki. Information from these people led the case agent to believe that Nikki might be
local, so he notified the agencies in the areas surrounding Rialto and he talked to family
members, all of whom denied knowing her whereabouts.
Within six or seven months before the hearing, the case agent searched all the
places in San Bernardino and Riverside Counties where people said Nikki would reside
or frequent on a regular basis. Six months before the hearing, the case agent contacted
one of Nikki’s aunts, but got no information. On and off since January 2011, the case
agent had checked the Web site, Accurint, and Nikki’s name came up at several locations
linked to family members. Williams and another detective conducted stakeouts at those
locations several times to see if they could determine Nikki’s whereabouts. From three
12
months before the hearing, Williams tried just about every day to contact Nikki by
telephone and by contacting law enforcement agencies.
Approximately two months before the hearing, Williams put Nikki’s information
into the C.I.I. database, with a flyer, so that if she were stopped by the police, the officer
who stopped her would have the information that Rialto Police Department should be
contacted. The flyer was still active at the time of the hearing. Within the last two weeks
before the hearing, Williams visited another of Nikki’s aunts and contacted several other
family members who lived locally. The aunt dialed a phone number for Nikki’s mother
and sister, who lived out of state, and Williams spoke to them in the presence of the aunt.
After speaking with the aunt and the mother, Williams located information leading him to
the apartment complex where they resided. Williams had the local police go there, but
learned Nikki had moved within the previous month.
However, the local police did learn that Nikki had been in a vehicle that had been
ticketed. Williams checked the license number of that vehicle, and tracked it to a
different state. Two weeks before the hearing, Williams asked that state’s local law
enforcement go the address of the registered owner of the car, but the owner claimed not
to know Nikki. The trial court ultimately found the case agent’s testimony to be credible.
The prosecutor explained its failure to contact Nikki between the time of her
relocation and October 2010 was due to its belief they were on good terms with her and
she had no criminal convictions then or at the time of trial. Because Nikki was in a place
13
where she was surrounded by family members, the prosecutor believed her office would
be able to contact Nikki.
The trial court found that Nikki was a critical witness, the only eyewitness to the
crime. It noted that her testimony had been videotaped, as was common in gang cases, so
it could be seen and heard, rather than merely read. The court concluded that the
prosecution had established due diligence and permitted the People to play the videotape
to the jury.
b. Discussion
On appeal, both defendants argue that the People did not employ “due diligence”
in efforts to secure Nikki’s attendance. We disagree.
Under both the federal and state Constitutions a criminal defendant is guaranteed
the right to be confronted with the witnesses against him. (U.S. Const., 6th Amend.;
[confrontation clause is applicable to the states].) “If a witness is unavailable at trial and
has given testimony at a previous court proceeding against the same defendant at which
the defendant had the opportunity to cross-examine the witness, the previous testimony
may be admitted at trial”. (People v. Sánchez (2016) 63 Cal.4th 411, 440.) Prior trial or
preliminary hearing testimony is admissible only if the defendant had an adequate
opportunity to cross-examine and if the government has established the unavailability of
the witness. (Crawford v. Washington (2004) 541 U.S. 36, 57, 59 [158 L.Ed.2d 177, 124
14
S.Ct. 1354], citing Mattox v. United States (1895) 156 U.S. 237, 244 [39 L.Ed. 409, 15
S.Ct. 337].)
In a criminal case, the prosecution bears the burden of showing that the witness is
unavailable and that it made a “good-faith effort” (Barber v. Page (1968) 390 U.S. 719,
725 [20 L. Ed. 2d 255, 88 S. Ct. 1318]), or, in the alternative, exercised reasonable or due
diligence to obtain the witness’s presence at trial. (People v. Cromer (2001) 24 Cal.4th
889, 892.) In this state, the exception to the confrontation right for prior recorded
testimony is codified in Evidence Code, section 1291, subdivision (a), which provides, in
part, that former testimony is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and the party against whom the former testimony is offered was
a party to the action or proceeding and had the right and opportunity to cross-examine the
declarant with an interest and motive similar to that which he has at the hearing.
Evidence Code section 240 governs unavailability of a witness. In part, that
section provides that the term “unavailable as a witness,” means “[a]bsent from the
hearing and the proponent of his or her statement has exercised reasonable diligence but
has been unable to procure his or her attendance by the court’s process.” (Evid. Code,
§ 240, subd. (a)(5).)
“Due diligence” is not capable of a mechanical definition, but “‘connotes
persevering application, untiring efforts in good earnest, efforts of a substantial
character.’ [Citation.]” (Cromer, supra, 24 Cal.4th at p. 904.) “Relevant considerations
include ‘“whether the search was timely began’” [citation], the importance of the
15
witness’s testimony [citation], and whether leads were competently explored [citation].”
(Ibid.)
In People v. Fuiava (2012) 53 Cal.4th 622, the trial court permitted the
prosecution to introduce at trial the preliminary hearing testimony of a witness who was
parked in a car at the time of the shooting, heard the gunshots, and saw the defendant and
others running near the scene of the shooting. The homicide detective was tasked with
locating the witness and serving a subpoena on her to procure her testimony at trial, and
began the process of locating her two weeks before the date set for the trial. He checked
her two last known addresses, interviewed neighbors, and checked the records of the
Department of Motor Vehicles, but learned of no new addresses. He checked hospital
and jail records on a regular basis and gave patrol deputies her photograph and
description, so they would be on the lookout for her. (Id, at pp. 675-676.)
Based on this evidence, the reviewing court in Fuiava concluded that the trial
court had properly determined that the prosecution had exercised reasonable diligence in
attempting to locate the witness. (Fuiava, supra, 53 Cal.4th at p. 676.) Specifically, the
Court of Appeal held that the detective began his search within a reasonable period of
time before trial, and that it would have been unreasonable to impose upon the People an
obligation to keep “periodic tabs” on every material witness in a criminal case. (Ibid.)
In reaching that conclusion, the court distinguished the holding of People v. Louis
(1986) 42 Cal.3d 969, a case on which the defendants in this case have relied. In Louis,
the California Supreme Court held that the People did not exercise due diligence because
16
the prosecutor took no steps to prevent the absence of the witness. The defendants focus
on the Supreme Court’s observation in Louis that the prosecution had a duty to use
reasonable means to prevent a witness from becoming absent. (Louis, supra, 42 Cal.3d at
p. 991.) However, in that case, the witness was known to be unreliable and his credibility
was suspect. Ordinarily, the prosecution is not required, “absent knowledge of a
‘substantial risk that this important witness would flee,’ to ‘take adequate preventative
measures to stop the witness from disappearing.’ [Citations.]” (People v. Wilson (2005)
36 Cal.4th 309, 342.)
Unlike the witness in Louis, Nikki had no criminal background and there was no
indication she would disappear. While the prosecution actually assisted Nikki in leaving
the state to move to another state where her family resided, there was no good cause to
believe she would flee and every reason to believe she would be cooperative, where her
credibility was not suspect and she was not considered unreliable at the time of her move.
Further, having testified against two gang members, Nikki’s need for safety was
paramount, and the search for Nikki was timely undertaken and leads were competently
explored.
The defendants criticize the detective’s attempts to search for Nikki locally when
he knew she had been relocated to another state. However, Detective Williams testified
that information he gathered led him to believe that Nikki was local and people had told
him that they had seen her in the area within six months before the hearing. This was
consistent with Williams’s testimony that after the preliminary hearing in Windfield’s
17
other criminal case in September 2010, law enforcement became concerned that Nikki
had disappeared from where she had been relocated. It was reasonable for Williams to
search for her locally based on the information available to him.
Defendants also criticize the prosecution for not contacting hospitals and medical
establishments in the state where she was relocated, but the prosecution checked with the
welfare agency that was providing funds to her. Any application for medical coverage at
public expense would have been noted by that agency, and defendants have not
established that Nikki was indeed hospitalized, so there is no reason to believe that such a
check would have yielded information about her whereabouts. Defendants cite no
authority requiring the prosecution to engage in such a search absent reason believing it
would yield useful information. Moreover, given the current status of HIPAA (Health
Insurance Portability and Accuracy Act of 1996), we doubt that it would have been easy
for law enforcement to obtain information about Nikki from medical providers.
As to defendants’ suggestion that clinics and hospitals should have been contacted
to determine if the child she was carrying at the time of the crimes received treatment at
any of those facilities, the record shows that trial counsel for Johnson informed the court
that the child had been taken from Nikki by the local Department of Children and Family
Services and given to the child’s father. The trial court correctly determined that the
prosecution used due diligence in attempting to locate Nikki.
Nikki was unavailable as a witness and the parties against whom the former
testimony was offered were parties to the action or proceeding who had the right and
18
opportunity to cross-examine the declarant with an interest and motive at the preliminary
hearing similar to that which they had at the trial.
Even if we disagreed with the court’s due-diligence determination, any error was
harmless beyond a reasonable doubt. Although Nikki did not testify in person, her
testimony at the preliminary hearing had been videotaped, and the tape was played for the
jury. The jury was thus able to view her and make credibility determinations from her
demeanor as recorded.
Additionally, other witnesses corroborated Nikki’s testimony. M.G. saw both
defendants with guns shortly before the shooting at the Ramona Street address and heard
Windfield state they were going back to East Jackson because Smith had Windfield
“running like a bitch,” and that Smith would be taken care of that night. A half hour
later, the two defendants returned and Johnson asked M.G. to drive him to some
apartments in Rialto to drop his clothes off, so as to make it look like someone in the
“Hustler Squad” had killed Smith. Johnson admitted to M.G. that he and Windfield had
shot Smith. She heard Windfield say he shot Smith at least four times and heard Johnson
admit that he shot Smith in the face. The next day, M.G. was present when Windfield
told Peete they had not intended to shoot him. These statements alone would have been
sufficient to support the convictions.
While the trial court found that Nikki was a critical witness, important portions of
her testimony were corroborated by other witnesses and there was ample evidence aside
19
from her testimony supporting the convictions despite the fact she was impeached with
inconsistent statements she had made.
In any event, to the extent defendants assert that an extraordinary showing of due
diligence was required because of her value to the prosecution (see People v. Herrera
(2010) 49 Cal.4th 613, 622), such a showing was, in fact, made. There was no error.
2. Insufficiency of the Evidence of Intent to Kill Under the “Kill Zone” Theory.
Defendants contend that there was insufficient evidence to support a finding of
specific intent to kill in connection with the attempted murder count. Specifically, they
argue there was insufficient evidence that defendants created a kill zone by firing their
guns and that the attempted murder victim was in that zone. The most recent petition for
review was granted and held by the Supreme Court while it considered this question in
the case of Canizales, supra, 7 Cal.5th 591, and, following the decision in that case, we
were directed to vacate our opinion and reconsider the issue in light of the recent holding.
We do so now and reaffirm our earlier conclusion that the kill zone theory was correctly
applied here.
It is well-settled that to prove the crime of attempted murder, the prosecution must
establish “the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.)
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
20
another under the transferred intent doctrine. (People v. Bland (2002) 28 Cal.4th 313,
327–328 (Bland).) However, the doctrine of transferred intent does not apply to
attempted murder. (People v. Souza (2012) 54 Cal.4th 90, 120.)
In Bland, supra, the California Supreme Court expressly embraced the concept of
a concurrent intent to kill as a permissible theory for establishing the specific intent
requirement of attempted murder. Under that theory, the nature and scope of the attack
directed at a primary victim may raise an inference that the defendant “‘intended to
ensure harm to the primary victim by harming everyone in that victim’s vicinity.’”
(Bland, supra, 28 Cal.4th at p. 329, quoting Ford v. State (1993) 330 Md. 682 [625 A.2d
984, 1000].) The Supreme Court explained that “‘[w]here the means employed to
commit the crime against a primary victim create a zone of harm around that victim, the
factfinder can reasonably infer that the defendant intended that harm to all who are in the
anticipated zone.’” (Bland, supra, 28 Cal.4th at p. 330, quoting Ford, supra, 330 Md. at
p. 1001.)
The kill zone theory embraced by Bland, as it relates to multiple attempted murder
charges, is necessarily defined by the nature and scope of the attack. (People v Perez
(2010) 50 Cal.4th 222, 232.) It could lead to some anomalous results, such as in Perez,
where a defendant was convicted of eight counts of attempted murder after firing a single
shot at a group of police officers standing in close proximity with each other, and 60 feet
away from defendant. There, the court held that the nature and scope of defendant’s
attack on the group had not created a zone of fatal harm around them and that Bland did
21
not apply. (Perez, supra, 50 Cal.4th at p. 232.) “The indiscriminate firing of a single
shot at a group of persons, without more, does not amount to an attempted murder of
everyone in the group.” (Ibid.) Thus, a single count of attempted murder could stand,
but not eight counts. Of course, this did not mean that defendant’s act of endangering the
lives of the other individuals in the group would not go unpunished, where Perez was
properly convicted of multiple counts of assault with a semiautomatic firearm on a peace
officer.
We note that at least one single-bullet case that gave rise to two counts of
attempted murder has been affirmed, where the defendant fired from behind the car in
which a mother was driving and her baby was in a car seat directly behind her. (People v.
Smith (2005) 37 Cal.4th 733, 736-737.) However, that case was not resolved by resort to
the “kill zone” theory.
In People v. McCloud (2012) 211 Cal.App.4th 788, the court of appeal held it was
error to instruct on the kill zone theory of liability for attempted murder where the
defendant was convicted of 46 counts of attempted murder after firing 10 shots from a
semiautomatic handgun at a party where over 400 people were present. The reviewing
court held that the kill zone theory is not an exception to the mental state requirement for
attempted murder. It went on to hold that in order for the kill zone theory to support all
46 convictions, the record would have had to show that defendant tried to kill a targeted
person by killing all 46 people in the area where the targeted individual was located.
(Id. at p. 798.) At the appellate level, other courts have disagreed on whether the kill
22
zone theory may be used where the method of killing is not designed to ensure the death
of everyone in the kill zone. (See People v. Warner (2019) 35 Cal.App.5th 25, 35.) For
this reason, the Supreme Court granted review on this case and others involving the “kill
zone” theory.
The Supreme Court resolved the various disagreements in Canizales, supra. In
Canizales, codefendant Windfield (who is also a defendant in the present case) fired five
shots in the general direction of two rival gang members, Pride and Bolden, from across
the street, a distance of either 100 or 160 feet away. One of his bullets struck an innocent
bystander who was near her parked car. The defendants were convicted of one count of
murder and two counts of premeditated attempted murder as to Pride and Bolden.
The Supreme Court concluded “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 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.”
(Canizales, supra, 7 Cal.5th at p. 607.) In other words, the kill zone theory applies when
the 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.
23
However, it reversed the attempted murder convictions as to both defendants because
there was insufficient evidence to support an instruction on the kill zone theory.
Specifically, the court held that an instruction on the kill zone theory would have
been warranted “only if there was substantial evidence in the record that, if believed by
the jury, would support a reasonable inference that defendants intended to kill everyone
within the ‘kill zone.’ To qualify, the record would need to include (1) evidence
regarding the circumstances of defendants’ attack on Pride that would support a
reasonable inference that defendants intentionally created a zone of fatal harm around
him, and (2) evidence that Bolden was located within that zone of fatal harm. Taken
together, such evidence would permit a finding that defendants harbored the requisite
intent to kill Bolden because he was within the zone of fatal harm that defendants
intended to create around Pride.” (Canizales, supra, 7 Cal.5th at pp. 609-610.)
For further guidance, Canizales instructs us that in determining the defendants’
intent to create a zone of fatal harm and the scope of any such zone, “the jury should
consider the circumstances of the offense, such as the type of weapon used, the number
of shots fired (where a firearm is used), the distance between the defendant and the
alleged victims, and the proximity of the alleged victims to the primary target. Evidence
that a defendant who intends to kill a primary target acted with only conscious disregard
of the risk of serious injury or death for those around a primary target does not satisfy the
kill zone theory.” (Canizales, supra, 7 Cal.5th at p. 607.)
24
In Canizales, the Supreme Court concluded that the evidence was insufficient to
support a finding that the defendants intended to create a zone of fatal harm. (Canizales,
supra, 7 Cal.5th at p. 711.) It noted that whether the inference could reasonably be drawn
depended on whether the evidence that neither of the two attempted murder victims was
hit by any of the shots fired by Windfield (who was the shooter in that case a year before
his involvement in the current crimes). The defendants’ lack of proximity to one of the
attempted murder victims, and the openness of the area in which the attack occurred, also
diminished any inference that the defendants intended to create a zone of fatal harm
around the primary target. (Ibid.)
The present case is distinguishable. Here, multiple shots were fired by each
defendant from semi-automatic firearms at close range against two people who were
walking side-by-side, were in such close proximity that they fell into each other.
Although Smith was the targeted individual, the manner of shooting multiple times into
the pair of victims who were in close proximity, even in a pile at one point, with
semiautomatic firearms fired from close range, gives rise to the strong inference that
defendants intended to create a zone of fatal harm and that each defendant harbored the
requisite intent to kill both the primary target and everyone within the zone of fatal harm.
Windfield’s statement to Peete that he did not mean to shoot him rings hollow where he,
as well as Johnson, fired at Smith repeatedly even after Smith had fallen onto Peete.
Defendants assert that there is insufficient evidence to support a kill zone theory
because “[Johnson] and . . . Windfield waited for [the murder victim] to appear, and
25
when he did appear they fired at close range a number of well-targeted shots designed to
hit and kill only [the murder victim].” However, the evidence does not support their
theory. The defendants both shot at close range, firing multiple times at Smith who fell
on top of Peete. Whether or not the defendants intended to shoot Peete, the two victims
were in close proximity to each other and the defendants, such that the only reasonable
inference is that they intended to create a zone of fatal harm around Smith, and Peete was
located within that zone.
We also disagree with defendants’ categorization of the shots as “well-targeted,
designed to hit and kill only [the murder victim]” under the circumstances here. Peete
testified that just before the shots began, he and the murder victim were walking side by
side, then he heard the first shot or shots, told the murder victim to hold up, then both
turned and ran into each other, and while turning, facing each other, he got shot. He also
testified when he went down after being shot, he thought the murder victim was still
standing, but the latter fell on top of him. From this, it is most likely that Peete got hit
before the murder victim was hit, while he and the murder victim were very close to each
other.
Additionally, in her preliminary hearing testimony, Nikki said that when Johnson
and Windfield approached the murder victim, the attempted murder victim was holding
him tightly by having one of his arms over the murder victim’s shoulder 5 and after that,
while Johnson and Windfield were shooting at the murder victim, the attempted murder
5 She said he was trying to stop the murder victim from going any closer to where Nikki had warned him the armed defendants were.
26
victim was trying to cover or shield the murder victim, by standing between him and the
defendants, and he moved his body as they moved, so they couldn’t shoot the murder
victim.
However “well-targeted” the defendants’ bullets might have been intended, when
another person is standing very close to the targeted victim, or has placed himself
between the shooters and the targeted victim and is acting as a shield for the latter, we
cannot imagine a more appropriate application of the kill zone theory, especially where,
despite this, the shooters shoot, actually hitting that person. Contrary to defendants’
assertion, the fact that the murder victim was hit with nine bullets (aside from the “coup
de gras” to the head) and the attempted murder victim with only one bullet does not
disprove that the attempted murder victim was in the line of fire. We therefore conclude
that there was ample evidence to warrant the kill zone instruction (CALCRIM 600).
Defendants’ attack Nikki’s testimony that clearly established that the attempted
murder victim was in the line of fire because, according to them, she “never gave a
reliable description of precisely where the shooters were positioned when [the murder
victim] was shot.” We disagree. She described, with great precision, where the
attempted murder victim was in relation to the murder victim and the attempted murder
victim’s testimony corroborated at least part of this description (i.e., he testified that he
told the murder victim to hold up as the first shot or shots were fired and this was
consistent with Nikki’s description that he was holding back the murder victim, and he
testified that the two ran into each other as he was hit with the bullet, which was not
27
inconsistent with her perception that he was shielding the murder victim during the
shooting). In any event, on a sufficiency of the evidence claim, we do not discount a
witness’s testimony unless it is so improbable as to be unworthy of belief (People v.
Thornton (1974) 11 Cal.3d 738, 784, overruled on other grounds in People v. Flannel
(1979) 25 Cal.3d 668, 684, fn. 12), and Nikki’s was not.
Defendants’ assertion that the method used — a hail of bullets from two different
guns — was insufficient to support the finding of specific intent is unreasonable. The
very fact that they created a hail of bullets at close range to two individuals who were
either side by side, or with Peete in front of Smith, intending to kill Smith, is the very
definition of creating a kill zone. Under these circumstances, the jury could reasonably
infer that defendants “‘used a means to kill the [murder victim] that inevitably would
result in the death of other victims within the zone of danger.’” (People v Stone (2009)
46 Cal.4th 131, 138.)
As to the argument that the fact that Windfield apologized to the attempted murder
victim, saying they did not intend to shoot him, defeated any inference the jury might
draw that they intended to kill Peete, we note that the jury was perfectly free to reject this
self-serving statement, and they apparently did so. If, as defendants assert, they were
“being careful not to shoot” the attempted murder victim, they would not have shot while
Peete was shielding Smith with his body, before shooting Smith.
28
Even after the Supreme Court’s clarification of the “kill zone” theory as provided
by the decision in Canizales, we conclude the evidence is sufficient to support the finding
of specific intent to kill under the “kill zone” theory.
Defendants also complain that the instruction on the “kill zone” theory was
incomplete and the prosecutor misstated the theory during closing argument.
Specifically, they refer to the language from Canizales requiring that the instruction
provide further definition of the term “kill zone” and that it failed to direct the jury to
consider the circumstances of the defendants’ attack when determining whether
defendants intended to kill the intended target by killing everyone in the kill zone.
(Canizales, supra, 7 Cal.5th at p. 613.)
Neither point has merit. As we have already discussed, there was ample evidence
of the circumstances of the defendants’ attack to demonstrate they intended to kill their
intended target by killing everyone in the kill zone. Any error was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
As for the completeness of the instruction on the kill zone theory, or the propriety
of the prosecutor’s argument relating to the instruction, neither defendant objected to the
adequacy of the instruction nor to the closing argument, so those issues were forfeited.
(People v. Buenrostro (2018) 6 Cal.5th 367, 428, citing People v. Hillhouse (2002) 27
Cal.4th 469, 503 [party may not argue on appeal that an instruction correct in law was too
general or incomplete, and thus needed clarification, without first requesting such
clarification at trial].)
29
The defendants’ original briefs on appeal and their petitions for review did not
complain about the adequacy of the kill zone instructions; instead, they argued there was
insufficient evidence to warrant an instruction on that theory. Neither defendant sought
leave to raise new issues for the first time following multiple reviews. There was
sufficient evidence to support the kill zone theory and defendants’ convictions based
thereon, so we find no reversible error.
3. No Error in Failing to Instruct on Provocation as to Attempted Murder.
Defendants argue that the trial court’s failure to instruct the jury sua sponte on
provocation as to the charged attempted murder, similar to CALCRIM No. 522, requires
reversal of the findings that the attempted murder was premeditated. We disagree.
Defendants recognize that two California Supreme Court decisions have held that
there is no sua sponte duty to give CALCRIM No. 522. (People v. Rogers (2006) 39
Cal.4th 826, 880; People v. Middleton (1997) 52 Cal.App.4th 19, 32-33, [disapproved on
other grounds in People v. Gonzales (2003) 31 Cal.4th 745, 752].) We are bound by
Supreme Court decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450.) This resolves the question of whether the trial court erred in failing to instruct on
provocation vis-à-vis the attempted murder of Peete sua sponte.
As a fall-back, defendants claim that their trial counsels’ failure to request a
CALCRIM No. 522-like instruction as to the charged attempted murder constitutes
incompetency of counsel. In order to prevail, they must demonstrate a reasonable
probability that, but for the failure to request this instruction, the outcome of this trial
30
would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 691-694,
697-698.) That probability must be sufficient to undermine confidence in the verdicts.
(People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
However, defendants cannot carry their burden. First, in order to show ineffective
assistance of counsel, defendant must meet the two-prong standard under Strickland. It
must be shown that (1) counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms, and (2) that the defendant suffered
prejudice to a reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at pp. 688, 693–
696; People v. Johnson (2016) 62 Cal.4th 600, 653.) A successful claim of ineffective
assistance of counsel must include both substandard performance and counsel’s deficient
performance was prejudicial. (People v. Hester (2000) 22 Cal.4th 290, 296.)
Here, deficient performance cannot be established because there was no evidence
that the offense was less than that charged and there was no evidence of provocation such
as would warrant an instruction on that point. (See People v. Breverman (1998) 19
Cal.4th 142, 154, citing People v. Hood (1969) 1 Cal.3d 444; People v. Noah (1971) 5
Cal.3d 469, 479; People v. Osuna (1969) 70 Cal.2d 759, 767.) Because there was no
evidence to support an instruction on provocation, there was no duty on the part of
counsel to request such an instruction. (See People v. Lewis (2001) 26 Cal.4th 334, 363;
People v. Svarvas (1983) 142 Cal.App.3d 511, 526.)
31
Here, the only evidence in the record relating to the defendants’ mental states
respecting the shooting of Peete is the evidence of Windfield’s statement to Peete the day
after the shooting, as reported by M.G., that they did not intend to shoot Peete. Had it not
been for the defendants’ acts of shooting into a “kill zone,” this evidence might negate a
specific intent to kill. But it also negates any theory of provocation respecting the
attempted murder. After all, shooting a person by mistake is not tantamount to a
provoked attack.
Further, the defense emphasized that Peete was unable to identify his shooters. An
instruction on provocation was inconsistent with the theory that someone else may have
shot him. There was no ineffective assistance of counsel.
We also observe that in convicting defendants of first degree murder, the jury was
instructed on provocation but necessarily rejected the possibility that any provocation that
existed reduced the first degree murder to second degree murder. This is true for either
theory of first degree murder that was available to the jurors, whether premeditated and
deliberate or lying in wait, as the latter, the jury was instructed, required “a state of mind
equivalent to deliberation or premeditation.”
Because the murder and the attempted murder were committed simultaneously, by
the same acts and under the same circumstances and were interconnected by the use of
the kill zone theory as to the latter, it would not be possible for the jury to conclude that
some provocation reduced the attempted murder to nondeliberate, nonpremeditated
attempted murder, but did not also reduce the murder to second degree murder.
32
Absent evidence of provocation sufficient to warrant the giving of an instruction,
there was no basis for an instruction permitting the jury to consider it, and counsel’s
failure to request such an instruction cannot be deemed to be deficient in any way. There
was no error.
4. Firearm Enhancement Allegations as to the Attempted Murder.
Defendants argue it was error to impose the principal and personal firearm use
enhancements, and the firearm-discharge-causing-great-bodily-injury enhancements as to
count 2, because the amended information failed to allege the enhancements. We
disagree.
a. Background
Count 2 of the first amended information correctly alleged that the defendants
committed the crime of attempted murder, in violation of section 664/187(a), a felony, by
unlawfully, and malice aforethought, attempting to murder Peete. That count further
alleged that the defendants personally and intentionally discharged a firearm which
caused great bodily injury and death to Pete within the meaning of section 12022.53,
subdivision (d), and that as to that count, a principal personally and intentionally
discharged a firearm, causing great bodily injury and death, within the meaning of section
12022.53, subdivisions (d) and (e)(1). That information included a fourth count, alleging
that both defendants were active participants in a criminal street gang, within the meaning
of section 186.22, subdivision (a).
33
On June 7, 2011, the seventh day of trial, when voir dire was still occurring, the
prosecutor told the trial court that she was taking out the great bodily injury allegation
relating to count 2, pursuant to section 12022.7, and that she would not be refiling count
4. The prosecutor also indicated she would be adding the allegation that the attempted
murder was willful, premeditated and deliberate. She said she would be filing an
amended information to reflect these changes.
The following day, the prosecutor filed what was entitled the third amended
information, although the record shows that no second amended information was ever
filed. The so-called third amended information alleged, in connection with the charged
attempted murder, that Johnson and Windfield had committed the crime of attempted
murder as to Smith, rather than Peete, that the attempted murder was willful, deliberate
and with premeditation.
It went on to allege “as to count(s) 1” that the defendants “personally and
intentionally discharged a firearm . . . , which caused death to [Smith] within the meaning
of Penal Code section 12022.53[, subdivision] (d) . . . .” It also alleged as to this count
that “a principal personally and intentionally discharged a firearm . . . , which
proximately caused death to [Smith] within the meaning of Penal Code sections
12022.53[, subdivisions] (d) and (e)(1).” It also alleged that the attempted murder had
been committed for the benefit of a gang. Finally, it alleged that the victim of this count
was the murder victim.
34
During arguments to the jury, on July 15, 2011, the prosecutor told the trial court
that she wanted to make sure, by interlineations, that count 2 of the so-called third
amended information “reflect[ed] Ricky Peete.” The trial court said it would make that
order. Although no such interlineations appear in the record before this court, we assume
that the third amended information was interlineated to substitute Peete’s name for
Smith’s, where the verdicts name Peete as the victim. Up to this point, all versions of the
information had included enhancement allegations under section 12022.53, subdivisions
(d) and (e)(1), specifying that the attempted murder was the subject of these allegations.
When the jury returned its verdicts, it found, in connection with the attempted
murder, that both defendants had personally used a firearm, personally used and
intentionally discharged a firearm, and personally used and intentionally discharged a
firearm, proximately causing great bodily injury to the attempted murder victim. The
jury also found, in connection with the attempted murder, as to both defendants, that a
principal used a firearm, a principal used and intentionally discharged a firearm and a
principal used and intentionally discharged a firearm proximately causing great bodily
injury to the attempted murder victim. The jury returned true findings on both firearm
allegations: the gun discharge enhancement pursuant to section 12022.53, subdivision
(d), and the allegation that a principal personally and intentionally discharged a firearm,
pursuant to section 12022.53, subdivisions (d) and (e).
Regarding the attempted murder charge, as to both defendants, the sentencing
court imposed an indeterminate term of 15 years to life, plus a term of 25 years to life for
35
the enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1), consecutive to
count 2. The court struck the allegation that the defendant personally and intentionally
discharged the firearm pursuant to section 12022.53, subdivision (d) as to both
defendants, leaving in place the allegations that a principal discharged the firearm as to
each defendant, as alleged pursuant to section 12022.53, subdivisions (d) and (e)(1).
b. Legal Principles
Section 12022.53, subdivision (d), provides a 25-year-to-life term for a defendant
who personally and intentionally discharges a firearm proximately causing great bodily
injury during an attempted murder. Section 12022.53, subdivision (e)(i) applies to the
enhancements provided in subdivision (b) (which is a 10-year enhancement when any
other principal personally uses a firearm), subdivision (c) (which is a 20-year
enhancement when any other principal personally and intentionally discharges a firearm),
and subdivision (d), (which is a 25-year-to-life term for any principal when any other
principal personally and intentionally discharges a firearm proximately causing great
bodily injury) when that person committed the crime for the benefit of a street gang.
Johnson argues, and Windfield joins, that subdivision (j) of section 12022.53
provides that for the penalties provided in that section to apply, any fact required under
subdivisions (b), (c) or (d) must be alleged in the accusatory pleading. According to
defendants, the third amended information did not include firearm enhancements
respecting count 2, because the third amended information only named Smith in the
substantive count and the firearm enhancement allegations. However, this argument
36
ignores the discussion in which the prosecutor insured that count 2 named the correct
victim. While the record on appeal does not include the interlineated version of the third
amended complaint, the jury’s verdicts show that the requisite corrections had been
made. We decline the invitation to reverse jury findings based on the state of the clerk’s
transcript as to the nature of the allegations in the version of the information that was
submitted to the jury.
The first amended information properly alleged the attempted murder of Peete,
along with firearm enhancements related to that crime involving Peete. For unknown
reasons, the document entitled the Third Amended Information replaced Peete’s name
with that of Smith. Johnson never objected or demurred to the third amended
information on the ground it named the wrong victim, and he was previously aware of the
firearm discharge allegations from the original information, and entered not guilty pleas
to all counts and allegations.
The jury instructions relating to the crime of attempted murder referred to Peete,
as were the firearm enhancements allegations pertaining to the attempted murder of
Peete. Neither defendant objected to the instructions on the ground that no firearm
enhancements were alleged as to him on count 2. When the verdicts were read, neither
defendant complained that the findings on the firearm enhancement as to count 2 were
erroneous because they had not been charged with the enhancement allegations.
Defendants attempt to analogize the situation here to that in People v. Mancebo
(2002) 27 Cal.4th 735 and its progeny fails. In Mancebo, the defendant was convicted of
37
multiple sex offenses against two victims on separate occasions. He was charged with 10
offenses and convicted and sentenced under the one strike law, section 667.61 based on
the gun use, along with a separate gun use enhancement pursuant to section 12022.5,
subdivision (a), although only one gun use allegation had been alleged and found true.
The court held that because the fact of the gun use had been used to impose the
indeterminate term under section 667.61, it was unavailable for imposition as a stand-
alone enhancement. That is not the situation here.
The record reflects that all parties and the court understood that the last corrections
suggested by the People had been made with the intention of modifying the allegations
only to the extent that count 2 incorrectly named Smith, the murder victim, as the victim
of the attempted murder count, and that enhancement language alleging that defendants
personally and intentionally discharged the firearm causing death to Smith was intended
to reflect the firearm discharge in causing great bodily injury to Peete. The presence of
the correctly stated allegation in the first amended information, which was read to the
jury before trial formally commenced, as well as in the instructions, negates any claim
that defendants lacked notice of the charges. Instead, their acquiescence to the
amendment, the instructions, and the verdict are tantamount to forfeiture of any claim
respecting the enhancement allegation as to count 2.
Because the jury made a true finding of the enhancement allegation under section
12022.53, subdivisions (d) and (e)(1), and because the information alleged the necessary
facts, i.e., that defendants personally and intentionally discharged a firearm causing great
38
bodily injury and another principal personally and intentionally discharged a firearm
causing great bodily injury where the crime was committed for the benefit of a gang, the
enhancement was properly imposed.
5.. Sentencing
a. Windfield’s Sentence as Cruel and Unusual
Windfield was sentenced in this case to three 25-year-to-life terms, plus a life term
with a 15-year minimum which was run concurrently with the time imposed in another
case of two 25-year-to-life terms, two 15-year-to-life terms plus 40 years. Windfield
contends that this sentence violates Miller v. Alabama (2012) 567 U.S.460 [132 S.Ct.
2455] (Miller).
Windfield was 18 years old when he committed the crimes in both cases and 21
when he was sentenced for both. He points out that his minimum parole eligibility
extends beyond any life expectancy he could possibly have. In Miller, the United States
Supreme Court held “that mandatory life without parole for those under the age of 18 at
the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and
unusual punishments.’” (Miller, supra, 567 U.S. at p. 465 [132 S.Ct. at p. 2460]; see also
Graham v. Florida (2010) 560 U.S. 48, 74 [130 S.Ct. 2011, 2030, 176 L.Ed.2d 825, 845],
holding that a sentence of life without parole for a juvenile offender who did not commit
homicide violated the Eighth Amendment].)
Windfield contends that scientific literature shows that the features of juveniles
discussed in Miller extend to 18 year olds. However, we are bound by precedent and
39
there is no precedent for us to declare that Miller applies to 18 year olds. Our legislature
has determined that 18 is the age at which a person is considered an adult. (People v.
Gamache (2010) 48 Cal.4th 347, 405.)
In People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 (Argeta), the appellate
court rejected an identical argument, holding, “while ‘[d]rawing the line at 18 years of
age is subject . . . to the objections always raised against categorical rules . . . [, it] is the
point where society draws the line for many purposes between childhood and adulthood.’
[Citations.] Making an exception for a defendant who committed a crime just five
months past his 18th birthday opens the door for the next defendant who is only six
months into adulthood. Such arguments would have no logical end, and so a line must be
drawn at some point. We respect the line our society has drawn and which the United
States Supreme Court has relied on for sentencing purposes, and conclude [that the
defendant’s] sentence is not cruel and/or unusual under Graham [v. Florida (2010) 560
U.S. 48 [130 S.Ct. 2011]], Miller, supra, 567 U.S. 460 [132 S.Ct. 2455], or [People v.]
Caballero [(2012) 55 Cal.4th 262].”
Recently, in Gutierrez, supra, 58 Cal.4th at page 1380, the California Supreme
Court endorsed the distinction drawn between those under the age of 18 at the time of the
crime and those 18 or older. Based on these authorities, Windfield’s sentence did not
violate the Eighth Amendment.
Notwithstanding the stated judicial policy, section 3051, added in 2013 pursuant to
Senate Bill 260, and amended in 2014 (effective in 2015) pursuant to Senate Bill 261,
40
entitles a prisoner serving a term of 25 years to life to a Youth Offender Parole hearing in
the 25th year of his incarceration, if the offender was under the age of 23 at the time of
his offense. (§ 3051, subd. (b)(3).) The California Supreme Court has directed us to
consider the recent holding of Perez, supra, 3 Cal.App.5th 612, which we do now.
In Perez, supra, the Fourth District, Division Three agreed with the holding of
Argeta, supra, and held that the lengthy indeterminate term did not violate the prohibition
against cruel and unusual punishment under Miller and Gutierrez because the defendant
was not a juvenile. But it did not end its review there. The reviewing court also noted
that the recent passage of Senate Bill 260, enacting sections 3051, 3046, subdivision (c),
and 4801, subdivision (c), provided for youth offender parole eligibility for persons who
were 25 years old or younger at the time of committing the controlling offense.
However, in light of the decision in Franklin, supra, 63 Cal.4th at page 284, the
court held that the defendant did not have an opportunity “‘to put on the record the kinds
of information that sections 3051 and 4801 deem relevant at a youth offender parole
hearing.’ [Citation.]” (Perez, supra, 3 Cal.App.5th at p. 619.) Therefore, it concluded
he was entitled to a limited remand at which hearing both parties could make an accurate
record of the defendant’s characteristics and circumstances at the time of the offense so
that the Board of Parole Hearings, years later, could discharge its duties and give proper
weight to the youth-related factors. (Ibid.)
Because Windfield was under the age of 23 at the time of his offense, he will be
eligible for parole in the 25th year of his term pursuant to section 3051. Although he is
41
not entitled to resentencing, he is entitled to a limited remand at which he and the People
may make an accurate record of his characteristics and circumstances at the time of the
offense for use by the Board of Prison Terms in determining his parole eligibility.
b. Johnsons’s Sentence as Cruel and Unusual
Johnson, who was 17 when he committed these crimes, also received a sentence of
90 years to life. As he correctly points out, the California Supreme Court has held that a
sentence of 110 years to life is the functional equivalent of a sentence of life without
parole. (People v. Caballero (2012) 55 Cal.4th 262, 295 (Caballero); see also People v.
Mendez (2010) 188 Cal.App.4th 47, 63 [a sentence of 84 years to life is the same];
Argeta, supra, 210 Cal.App.4th at p. 1482 [a term of at least 75 years in prison for a
defendant who was 15 years old at the time of the crime “likely requires that he be in
prison for the rest of his life”].) Johnson argues the sentencing court improperly imposed
an indeterminate life sentence without individualized consideration of him as a person.
In our original opinion, we agreed, and remand the matter for resentencing to give the
trial court the opportunity to consider the Miller factors.
After we filed our original opinion, the Supreme Court granted review on its own
motion and held it pending its decision in the then pending case of Franklin. After
Franklin was decided, the Supreme Court retransferred the case to us for reconsideration
in light of Franklin. We do so here.
In Miller, supra, the United States Supreme Court held that it is a violation of the
Eighth Amendment to impose a mandatory life without parole sentence upon a juvenile
42
in a homicide case because such a penalty “precludes consideration of [the juvenile’s]
chronological age and its hallmark features — among them, immaturity, impetuosity, and
failure to appreciate risks and consequences.” (Miller, supra, 567 U.S. at p. 477.)
Subsequently, the United States Supreme Court held in Graham v. Florida, supra, that
the Miller prohibition applied to all sentences that were the functional equivalent of life
without possibility of parole.
In Franklin, our Supreme Court held that the constitutional claim of cruel and
unusual punishment, established by the United States Supreme Court in Miller and
Graham had been mooted by the passage of Senate Bill No. 260 (2013–2014 Reg. Sess.)
(Senate Bill No. 260), embodied in sections 3051 and 4801. Those sections were enacted
to bring juvenile sentencing in conformity with Miller, Graham, and Caballero, supra.
(Franklin, supra, 63 Cal.4th at p. 268.) Section 3051 provides for a youth offender
parole hearing after a juvenile has served 25 years to life on a first degree murder
conviction. Although the constitutional claim was mooted, the Supreme Court concluded
Franklin had raised “colorable concerns as to whether he was given adequate opportunity
at sentencing to make a record of mitigating evidence tied to his youth.” (Franklin,
supra, 63 Cal.4th at pp. 268-269.)
In our original opinion, we commented that there was no sentencing memorandum
submitted by counsel for Johnson, the probation report contained scant information about
Johnson personally, and neither counsel for Johnson nor the sentencing court addressed
43
this topic during sentencing. Having been charged in adult court as a juvenile, Johnson is
entitled to an opportunity to make a record of mitigating evidence tied to his youth.
In Franklin, the Supreme Court held that the defendant was not entitled to be
resentenced, but, because it was unclear whether the defendant had sufficient opportunity
to put on the record the kinds of information that sections 3051 and 4801 deem relevant
at a youth offender parole hearing, the Supreme Court remanded the matter to the lower
court to make a record of information relevant to his eventual youth offender parole
hearing. (Franklin, supra, 63 Cal.4th at p. 284.)
The same result is appropriate here. While defendant is not entitled to be
resentenced, he is entitled to an opportunity to make a record of matters that may be
relevant at his eventual youth offender parole hearing, and the prosecution likewise may
put on the record any evidence that demonstrates the juvenile offender’s culpability or
cognitive maturity, or otherwise bears on the influence of youth-related factors.
(Franklin, supra, 63 Cal. 4th at p. 284.)
In our original opinion, we agreed that Johnson was entitled to resentencing under
Gutierrez. We now hold, pursuant to the Supreme Court’s direction, that while defendant
is not entitled to resentencing, he is entitled to an opportunity to make a record of the
Miller considerations in the trial court, to be considered at his eventual youth offender
parole hearing.
44
c. Correction of the Abstracts of Judgment
Defendants correctly point out that their abstracts incorrectly state that the dates of
the offenses were 2011, when they were 2009. We will direct the trial court to correct the
abstracts accordingly.
d. Pronouncement of Sentence on Johnson
Johnson argues he was not actually sentenced because the trial court, after
indicating that his sentence would be the same as that to be imposed on Windfield, asked
Johnson’s counsel if he would waive the court’s repeating the sentence that was actually
imposed on Windfield. Johnson’s counsel agreed, and the matter was left there.
Defendant claims the trial court did not actually sentence him. We disagree.
As the People point out, “claims deemed waived on appeal involve sentences
which, though otherwise permitted by law, were imposed in a procedurally or factually
flawed manner.” (People v. Scott (1994) 9 Cal.4th 331, 354.) Here, defendant was
present when the sentence as to Windfield was pronounced, was advised that the same
sentence was to be imposed on him, and when the court asked his counsel if he would
waive the need to repeat the sentence as to himself, his counsel agreed. He has waived
any error in the pronouncement of judgment.
Next, Johnson claims the sentencing court acted in excess of its authority by
making a post-disposition correction to certain allegations as well as the sentence as to
count 3. According to Johnson, as to counts 1 and 2, the court improperly struck the
allegation pursuant to section 12022.53, subdivision (d), which had been found true by
45
the jury in addition to the allegation pursuant to section 12022.53, subdivisions (d) and
(e)(1), in post-sentencing correction. At the original sentencing hearing, the court
imposed a single 25 year to life enhancement each to counts 1 and 2.
The final charging document included enhancement allegations as to both counts 1
and 2 that Johnson personally discharged a firearm causing death or great bodily injury to
the respective victims pursuant to section 12022.53, subdivision (d), as well as an
allegation that a principal personally discharged a firearm proximately causing death or
great bodily injury to the respective victims pursuant to section 12022.53, subdivisions
(d) and (e). The jury found both enhancement allegations true as to both counts. At the
original sentencing hearing, the court imposed a single term of 25 years to life respecting
each count, but failed to clearly specify for which of the two charged enhancements it
was imposing the term.
About two weeks after it had pronounced sentence, the court, without appearances
from any of the parties, “addressed” certain matters due to “clerical error” and specified
that it was imposing the 25 year to life enhancement under “12022.53(d)/e(1)” and
“strik[ing] the separate . . . 12022.53(d) enhancement.”
It is well settled that a court has the inherent power to correct clerical errors in its
records so as to make these records reflect the true facts. (In re Candelario (1970) 3
Cal.3d 702, 705, citing People v. Schultz (1965) 238 Cal.App.2d 804, 807, and People v.
Flores (1960) 177 Cal.App.2d 610, 613.) The court had previously determined to impose
a single gun discharge enhancement for each victim. The modification made by the trial
46
court did not alter the length of the term, it did not affect Johnson’s substantial rights or
prejudice him in any way.
Johnson argues that what the court did was not correct a clerical error, but declare
something done which was not done. We disagree. Section 12022.53, subdivision (f)
permits the imposition of only one enhancement under section 12022.53, subdivisions (d)
or (e)(1) “for each crime.” As such, multiple enhancements to each count were
unauthorized and subject to modification at any time. (See People v. Mendez (2019) 7
Cal.5th 680, 716.)
The court, when it originally imposed sentence, had properly imposed a single
enhancement but failed to state which of the two identical 25-year-to-life terms it was
imposing. It did so less than two weeks later. The error was clerical and the court was
authorized to correct it. There was no error.
e. Custody Credits for Johnson
The parties agree that the sentencing court shorted Johnson by one day in its
calculation of his presentence custody credits, although the People argue the issue was
waived. The clerk will be directed to correct the credits calculation when it prepares the
amended abstract of judgment.
DISPOSITION
The convictions for both defendants are affirmed.
We affirm the sentence as to Windfield but order a limited remand for a hearing in
the trial court at which hearing both defendant and the People can make an accurate
47
record of the defendant’s characteristics and circumstances at the time of the offense.
Additionally, the trial court is directed to amend Windfield’s abstract of judgment to
show that the crimes were committed in 2009, not 2011, as his abstract currently states.
We also order a limited remand of Johnson’s sentence to provide an opportunity to
present evidence of mitigation due to his youth, pursuant to the holding of Franklin,
supra. Upon further proceedings relating to Johnson, the trial court is directed to amend
the abstract of judgment to correctly note the date of commission of the crimes and to
award an additional day of presentence custody credits, the latter of which should also be
reflected in the minutes of the court.
CERTIFIED FOR PUBLICATION RAMIREZ P. J.
We concur:
MILLER J.
CODRINGTON J.
48
AI Brief
AI-generated · verify before citing
Holding. The court held that the prosecution exercised due diligence in attempting to locate a critical witness, thereby justifying the admission of her preliminary hearing testimony at trial.
Issues
Whether the prosecution exercised due diligence to secure the attendance of an unavailable witness to satisfy the Confrontation Clause.
Whether the admission of the witness's preliminary hearing testimony violated the defendants' constitutional rights.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“The court concluded that the prosecution had established due diligence and permitted the People to play the videotape to the jury.”