In re Bruno-Martinez CA3

Filed 2/18/21 In re Bruno-Martinez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

In re JOSEPH BRUNO-MARTINEZ C091819

On Habeas Corpus. (Super. Ct. No. 19HC00709)

In 2008, a jury found petitioner Joseph Bruno-Martinez guilty of attempted murder after being given a modified kill zone instruction. The jury also found petitioner guilty of discharging a firearm at an occupied vehicle and found true both crimes were committed for the benefit of a gang. The trial court sentenced him to a determinate term of 27 years and an indeterminate term of 15 years to life. We affirmed the judgment on appeal, and our Supreme Court denied review. (People v. Bruno-Martinez (Mar. 30, 2010, C060660) [nonpub. opn.] (Bruno-Martinez).) Petitioner filed a request in December 2019 for a writ of habeas corpus in the superior court based on our Supreme Court’s clarification of the kill zone theory for attempted murder in People v. Canizales (2019) 7 Cal.5th 591. The trial court denied the writ in February 2020. Petitioner then filed in this court and we issued an order to show

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cause why petitioner is not entitled to relief. The People filed a formal return and petitioner’s counsel filed a traverse. We shall deny the petition. FACTUAL AND PROCEDURAL BACKGROUND We draw the underlying facts from Bruno-Martinez, supra, C060660. Petitioner confronted Roland Rosas outside of a restaurant after seeing what he thought was a gang tattoo on Rosas. Rosas denied any gang affiliation and walked to Carmen Miranda’s car with Miranda and two other individuals when petitioner shot in the air and then began shooting at the car. Rosas and the others got out of the car and ran; no one was hit. At least seven shots were fired in total -- five from a .40-caliber gun and two from a .45- caliber gun. The car was hit multiple times and one of the windows was shattered. (Bruno-Martinez, supra, C060660 at pp. 2-3.) Petitioner was charged with the attempted murder of Rosas with enhancements for personal use of a firearm and commission of the offense for the benefit of a gang. He was also charged with shooting at an occupied vehicle and also with a gang enhancement. (Bruno-Martinez, supra, C060660 at p. 1.) At trial, the court indicated to counsel it would provide the CALCRIM No. 600 jury instruction for attempted murder without the optional paragraph relating to a kill zone theory. The parties agreed and the prosecutor indicated he was not pursuing a kill zone theory. Consequently, the jury was instructed that for attempted murder, the People must prove: (1) the petitioner took direct but ineffective steps toward killing another person, and (2) petitioner intended to kill another person. (Bruno-Martinez, supra, C060660 at pp. 4-5.) During deliberations, the jury asked: “ ‘On Count 1 do we have the discretion to find guilty of attempted murder charges without specifying [Rosas]?’ ” After discussion with counsel, the trial court responded: “ ‘No. The victim alleged in the charge is “[Rosas].” However, you may consider the following instruction of law as a supplement to Instruction 600.’ ” The court then instructed the jury as follows: “ ‘A person may