Filed 8/22/14 P. v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G049832
v. (Super. Ct. No. FWV1100266)
LEONARDO GONZALEZ, ORDER MODIFYING OPINION
AND DENYING PETITION FOR
Defendant and Appellant. REHEARING
[NO CHANGE IN JUDGMENT]
The opinion filed in this case on August 7, 2014, is ordered
modified as follows:
1. After the last paragraph on page19, insert the following:
Alleged Sentencing Error
Defendant contends the court erred in sentencing defendant.
He states he should have been sentenced to “life with a 15-year minimum parole
eligibility date plus 20 years for each of his attempted murder convictions instead of 35 to
life on each of these counts.”
The court sentenced defendant to “life to 15-year term”
pursuant to section 186.22, subdivision (b), plus 20 years for the firearm enhancement
under section 12022.53, subdivision (c), for a total of 35 years to life. The trial court did
not err. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1229.) Additionally, we note
the abstract of judgment states “15 years to Life.”
The modification does not change the judgment. The petition
for rehearing is DENIED.
MOORE, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
2
Filed 8/7/14 P. v. Gonzalez CA4/3 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G049832
v. (Super. Ct. No. FWV1100266)
LEONARDO GONZALEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of San Bernardino County,
Stephan G. Saleson, Judge. Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found defendant Leonardo Gonzalez guilty of attempted murder of
Griselda “Grace” Lester, Michael Lester and Jessica Gallegos, finding it to be true that he
personally used a firearm and personally and intentionally discharged a firearm during
the crimes, that it was true defendant committed the crimes willfully, deliberately and
with premeditation and that he committed the crimes for the benefit of, or at the direction
of, or in association with a criminal street gang. The jury also convicted defendant of
shooting at an inhabited building, that he was personally armed during the shooting, and
that he committed that crime for the benefit of a criminal street gang. He was also
convicted of kidnapping, false imprisonment by violence, corporal injury to cohabitant of
Andrea Gallegos and felon in possession of a firearm. The court sentenced defendant to
state prison for a total indeterminate sentence of 117 years to life.
On appeal, defendant contends his conviction for the premeditated
attempted murder of Grace Lester violated his right to due process, and that there were
several errors stemming from the court instructing the jury regarding the kill zone theory.
We disagree with his contentions and affirm.
I
FACTS
Andrea Gallegos
Andrea Gallegos met defendant “about a year” prior to testifying on
November 17, 2011. Two months later, they became intimate, and six months into the
relationship, defendant got “physical.”
Gallegos described the first incident: “We were at his house and he thought
that I was talking to an ex-boyfriend and he pushed me, got in my face and was just
yelling at my face.” After then, defendant accused her of cheating on him on a daily
basis, screamed at her, pushed her, shoved her and pulled her hair, and looked through
her cell phone. Defendant would say such things as: “Watch what I’m going to do to
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your family. I’m going to do something stupid to your family. Someone’s going to pay.”
Gallegos was afraid of defendant. Defendant punched Gallegos with enough force to
leave bruises. When she would try to leave him, defendant would respond: “Okay,
somebody is going to pay.”
Gallegos, her mother and her sister went to Texas for the holidays.
Defendant told her he wanted her to return before New Year’s Eve, and when she did not,
“he was very upset.” The prosecutor asked Gallegos how she knew defendant was so
upset, and Gallegos said her grandmother called her on “the morning of New Year’s” and
“told me that she woke up to a loud shattered glass, which was her front door, which was
completely shattered.” Later, defendant said to her, “I told you to be here before New
Year’s,” and offered to pay for the damage.
Gallegos returned home on January 7, 2011. On that day, defendant texted
her and told her to come outside, and that, if she did not, “something was going to happen
to [her] house.” Gallegos explained: “I knew I had to go outside so my family wouldn’t
have to pay for anything” because defendant had told her he was going to shoot up her
parents’ house or set it on fire. Defendant bore a tattoo with Gallegos’s name as well as
the name of her deceased son on it; he had not asked her permission to do that.
Defendant told Gallegos to get inside his car. When she did not, “he was angry, just told
[her] to get in the car,” and told her he was going to do something to her family or to her,
so she got in the car. As soon as she was inside, he told her to try to open the car door,
and when she did, the whole panel came off, and defendant said: “You can’t, you can’t
get out” and drove off. Gallegos told defendant she did not want to go with him, and said
she wanted to go back, to which defendant responded: “You’re going to come with me.”
He drove directly to his house, and did not touch Gallegos, but screamed at her en route.
When they got out of the car, defendant grabbed Gallegos’s phone from her
back pocket and shattered it. She said: “I don’t want to go, I don’t want to go,” and
3
defendant grabbed her and they went into the house. She did not feel she could leave,
explaining that “he would hit me to make me stay or, once again, tell me that my family’s
going to pay or somebody’s going to pay.” She was there for six or seven days. During
those six or seven days, he slapped her, pushed her, and accused her of cheating.
Defendant permitted Gallegos to attend a court hearing concerning her
deceased son on January 14. When she returned to retrieve some items, defendant
grabbed her face and pushed her onto a bed, shoved her onto a dresser and then onto the
floor. She got up quickly and tried to grab his phone. He threw the phone against the
wall and broke it, stating, “bitch, you’re not going to leave me.”
When defendant went into the garage, Gallegos, “walking fast” headed
outside, toward her aunt, who was parked around the corner waiting for her. Defendant
caught up with her and tried to force her into his car. Gallegos held onto the side of the
car as defendant pushed her to try to get her inside. At that point, defendant’s mother and
sister came outside, and defendant’s mother called out: “call the police; he’s hitting her.”
Defendant’s sister called the police and defendant’s mother said: “you want to hit
women, try hitting me.”
Gallegos described how defendant responded to his mother: “He was
cussing and he said, ‘Just watch. I’m going to go to her house and I’m going to shoot her
house up,’ continued to call me names and jumped in his car and took off.”
At trial, the prosecutor had Gallegos identify her various bruises on
numerous photographs taken at the Rialto police station. Gallegos was asked how many
times defendant told her he was going to shoot at her house, and she responded: “I can’t
even count. It was every time we would fight.” On one occasion when Gallegos’s aunt
observed defendant “in [Gallegos’s] face” and pushing her, the aunt said: “Don’t you
dare hit my niece.” Defendant responded: “I’m going to get you too, kill you.” Gallegos
said defendant thought everyone in her family was trying to take her away from him.
4
Based on everything she had gone through with defendant, Gallegos
obtained a restraining order against him in January 2011.
Rachel Contreras
Rachel Contreras is the grandmother of Gallegos. At some point, Gallegos
came to live with her. According to Contreras, Gallegos moved in with her because she
was trying to hide from defendant. On January 13 or 14, Contreras and her daughter
Kathy took Gallegos to defendant’s home so she could pick up her possessions. They
dropped Gallegos off and and parked down the street. Contreras wondered why it was
taking Gallegos so long and asked her daughter to drive to the front of defendant’s house,
and Gallegos’s face was all red, and “she had bruises on her arms already” and on her
chest.
Contreras related what defendant’s mother stated at the time: “The mother
told me that he was very violent. I guess he was always fighting with — I don’t
remember if it was his dad or his step dad and she made the statement at the end, she
goes, ‘I wish my son was dead.’ She goes, ‘Honest to God, I wish he was dead.’”
Contreras told Gallegos: “Get in the car. You’re going home. You’re not going to come
around this guy no more. This guy is not all there.”
Contreras relayed an incident that occurred on New Year’s Eve day or the
day before: “Well, I was asleep and all of a sudden I heard this — it sounded like one of
those big fireworks they throw at the park. It kind of just like made this real weird noise,
and I got up and I go, ‘What the heck was that?’ And I walked in my front room and I
seen all this stuff, and it was kind of dark in there so I didn’t really see what was on the
floor, but I seen this stuff on the floor and I go, ‘What the heck?’ I thought my ceiling
was falling down. So I stepped over and I picked it up. It was glass.” Also on the floor
was a piece of “cement that holds the top of the roof or the top of a block wall fence.”
5
Contreras testified she told Gallegos to tell defendant he had been seen on camera.
Jessica Gallegos
Jessica Gallegos is the sister of Andrea Gallegos. Jessica related an
incident that occurred in the “middle” of her sister’s relationship with defendant. The
three of them, the two sisters and defendant, were driving in a car when, “Leo stopped the
car and was screaming at her.” And then he “stopped and got out and ran around to the
passenger window in the front and was yelling at her.” Other cars went around the
stationary car as defendant yelled to Gallegos, “you don’t disrespect me.”
Defendant knew Jessica did not like him. When defendant was last at the
family home, before she rearranged her bedroom, Jessica’s head would be directly in line
with a window to the front of the house when she was in bed.
Kathy Barela
Kathy Barela is Gallegos’s aunt, and the daughter of Contreras. Gallegos
sometimes stayed at her house. Barela described an occasion when defendant was parked
outside her home for four to five hours. When Barela told defendant that Gallegos was
not there, defendant said “that he had spoke to Andrea and that she was going to be
coming to my house.” She said that defendant sat outside her house waiting for Gallegos
three other times. On a fourth occasion, she saw him drive by her house.
On August 25, 2010, Barela contacted the Fontana police because someone
had thrown “a piece of tile, like a roofing tile,” and broke two windows. Barela said it
was the same kind of rock that went through her mother’s window.
After Gallegos went to court on January 14, 2011, Barela and Contreras
went to defendant’s house in Rialto with her so Gallegos could retrieve some items she
left there. Barela described what happened: “Andrea told us to park down the street so
6
we parked down the street. And she walked over to Leo’s house, and she said ‘I’ll run in
and run out,’ so we waited out there and she didn’t run back out, so we kept waiting.
And I heard a bunch of noise but I lowered my radio down, and it was the neighbors. . . .
So finally my mom tells me, ‘It’s been too long. Let’s go see what’s going on.’ So I
started the car and drove down the street. And then they were out there fighting.”
Someone called out that the police were coming, and defendant got in his
car and “zoomed off” after glaring at Barela. Before they left, defendant’s mother
advised Barela and Contreras “to please keep Andrea away from Leo because she was
afraid for Andrea’s life.”
Grace Lester and Michael Lester
According to Contreras, Gallegos’s father is Contreras’s son and Gallegos’s
mother is Grace Lester. Grace is no longer married to Contreras’s son, but is now
married to Michael Lester who is Gallegos’s stepfather
On one occasion, Michael Lester had a conversation with defendant about
his tattoos. Defendant had tattoos on his neck and all over his shaved skull. Defendant
said he couldn’t have them removed because he had to get permission from the gang he
belonged to. Michael asked him why, and defendant said because “he was the Mafia,
Mexican Mafia.”
At another point, defendant “banged on the door rather loudly” and
“demanded” to see Gallegos. Michael Lester told defendant to leave. Defendant was
aggressive, aggravated and upset. As defendant walked away, defendant jabbed and
pointed his finger and said, “I’ll be back,” and Michael took that as a threat.
On another occasion, defendant telephoned Grace Lester, and when
Michael Lester saw how upset his wife was, he got on the phone and told defendant:
“Don’t call this phone number. Stay away from this house. Do not come back.”
7
In January 2011, during the time Gallegos was living at her grandmother’s
home, defendant’s mother telephoned Grace Lester to say she was “concerned that he
was going to either hurt Andrea or hurt one of her family members.” Michael Lester
called the police.
The Shooting
On January 26, 2011, at approximately 6:30 in the morning, Michael Lester
walked outside to the back patio to smoke a cigarette. After about five minutes, he
walked inside toward the restroom. He described: “. . . I saw the blinds blow up, heard
the window break, and then I heard something behind me. The bullet went through that
window and hit our fireplace, went through the fireplace screen and hit a brick and broke
a brick.” He added: “It came real close to my head.” After that, he heard multiple
gunshots.
Michael Lester ran to his youngest daughter’s bedroom, grabbed her and
placed her in the closet of the master bedroom. He put his wife in there too.
Michael said: “I got my shotgun and loaded my shotgun.” Inside the
closet, Grace dialed 911. The police arrived four or five minutes later.
A bullet was found by Gallegos’s room, and another was found right below
the window in Jessica’s room. Michael Lester explained the living room blinds were
closed, but the living room is nonetheless visible from the outside because of cracks in
the blinds.
Gallegos was staying with Contreras, and Grace Lester called to tell
Contreras about the shooting, and Contreras called the police, explaining “I figured he
was on his way over to my house.”
8
The Investigation
A neighbor of the Lesters, who was getting ready to go to work on January
26, 2011, noticed a suspicious vehicle. She described it as like blue colored. “The hood
was dented and it wasn’t like kind of a name brand car. It wasn’t like a Honda or a
Toyota and it was an older car” with limo tinting. When she was leaving to go to work
she heard gunshots. She said: “[S]o I closed the door and happened to see the car
pointed towards my house to like make a U-turn. And so then I saw someone jump into
the car.” The person wore a hood, and the car took off and went down the street.
A police investigator explained they found “three different locations that
resembled that of either a penetrating mark or a strike mark to the house and also
additional information given to me at the time by the officers there that a projectile had
traveled through the house and had struck the fireplace, which was on the other side of
the home, on the north side. All of the action was occurring on the south side of the
home.” The next morning, January 27, 2011, with the use of a metal detector, officers
found two nine-millimeter Luger cartridge casings in a grassy area in the front of the
Lesters’ home.
During the afternoon of January 26, 2011, a police officer with the Ontario
Police Department went to the address where defendant lived with his parents in Rialto.
As the officer drove by the house, defendant crouched down beside a blue Kia Rio
automobile. The officer made a U-turn and left the street, but watched the house with
binoculars from about 50 yards away for a few hours. The officer observed defendant,
carrying a small black bag, proceed to the side of the house, stay for about 30 seconds,
and then come back to the front of the house without the black bag.
Later, a detective took the neighbor to view the Kia Rio. She recognized it.
She said: “Yeah, it looked like the vehicle that was parked by my car.” “. . . I noticed the
9
damage to the hood and the same dark limo tint and the color and pretty much exactly the
same.”
Other officers, after securing a search warrant, searched the Rialto house
the night of January 26, 2011. Inside the house, they found a black hooded sweater and a
pair of blue jeans. Defendant’s mother said the clothes looked too large for defendant,
but then she held them up to her nose and smelled them and said, “They’re Leo’s.”
Defendant’s mother also told police defendant and his car were gone between 5:30 and
8:00 a.m. that morning.
At the side of the Rialto house, they found a black bag containing a Luger
handgun. A magazine and loose ammunition were found in the bag’s pocket.
A firearms examiner with the San Bernardino Sheriff’s crime lab examined
the nine-millimeter Luger, a magazine, five live rounds and fired cartridge casings found
at the Lester home. He concluded the casings were fired from the Luger.
The Trial
The court included CALCRIM No. 600 in instructing the jury. That
instruction includes the following language: “A person may intend to kill a specific
victim or victims and at the same time intend to kill everyone in a particular zone of harm
or ‘kill zone.’ In order to convict the defendant of the attempted murder of Mike Lester,
Grace Lester and Jessica Gallegos, the People must prove that the defendant not only
intended to kill Andrea Gallegos but also either intended to kill Mike Lester, Grace
Lester and Jessica Gallegos, or intended to kill everyone within the kill zone. If you have
a reasonable doubt whether the defendant intended to kill Mike Lester, Grace Lester and
Jessica Gallegos or intended to kill Andrea Gallegos by killing everyone in the kill zone,
then you must find the defendant not guilty of the attempted murder of Mike Lester,
Grace Lester and Jessica Gallegos.”
10
During argument the prosecutor stated: “Now, there’s some really
interesting concepts for attempted murder that you don’t see on T.V. and that you don’t
see in the news and everyday life. The basic concept of attempt murder is that the
defendant took at least one direct but ineffective step towards killing someone, and the
defendant intended to kill that person. That’s it. That’s all you have to do. That is all
this defendant had to do was to take one step towards killing Mr. Lester, Mrs. Lester or
Jessica Gallegos. [¶] In this case, he took much more than one step. He brought a gun,
he brought ammunition, he loaded the gun and he pointed it at vital areas of the house in
an attempt to kill them. [¶] But there’s some definitions that go along with attempted
murder. And there’s a theory—and this is only one of the theories that you can use to
find him guilty of attempted murder. There’s several—we’re going to talk about kill
zone because it does kind of apply in this case. That’s the term that the jury instruction
actually uses. [¶] Is anybody in a kill zone? If you’re standing in the middle of a crowd
and a suspect wants to kill somebody in that crowd and he’s willing to shoot into that
crowd, knowing that he could take out anybody else in that crowd, he’s responsible for an
attempted murder of everybody in that crowd, even if he doesn’t hit them. Okay? That’s
what the kill zone theory is all about. [¶] 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. [¶] And these—I pulled out of the jury instructions. In order to convict the
defendant of attempted murder of Mike, Grace or Jessica, I must prove that the defendant
not only intended to kill Andrea but also either: He can, on his own, just intend to kill
Mike, Grace and Jessica. He doesn’t have to want to kill Andrea. This is the first theory.
He can just want to kill those three individuals because he hates them enough because
they’re standing in the way of him getting to Andrea, and that they are keeping him from
Andrea. [¶] So as long as — He could either intend to kill each one of those individually
or he could intend to kill anybody in that house, thinking, number one, that Andrea is in
11
there, or that he that he just wants to take everybody out in the house because he can’t
stand anybody in that house because they’re keeping him away. See, two concepts. [¶]
So he can intend to kill the separate victim. What do you have of evidence that he was
going for — well, probably not a good choice of words — that he was attempting to kill
Mike, and Jessica? Well, he shot in separate windows. He shot one clearly belonging to
Jessica, whom he did not like. He shot into Andrea’s window, who just filed a
restraining order against him on January 20th, and he shot into a window of — that Mike
Lester was walking through or that any family member could have easily been walking
through at 6:30 in the morning when everybody is getting up to go to work.”
The prosecutor later argued to the jury: “The first shot through the first
window, C, you remember that was the window all the way over on the left, that supports
attempted murder of all three people. One shot, okay, some of you might be thinking,
‘well, you know, Grace Lester was in the closet and she was in the [master] bedroom and
there was no shot into the master bedroom.’ The problem with that is that Grace Lester
could have been walking by that window instead of Mike Lester, and so could have
Andrea. Anybody could have been. The fact that there’s one shot through a window
means he didn’t care to who was walking by that window. He cared that he was going to
get into Andrea’s room and into Jessica’s, but the shot through the window, that
supports—that’s evidence that supports an attempted murder for anybody in that house,
that anybody could have been walking through there.” Shortly thereafter, the prosecutor
stated: “The attempted murders, one shot into the main window is enough to prove all
counts.”
During deliberations, the jury asked the following question: “Can we
please have a more specific definition of the term ‘kill zone’? [¶] Note on page 22 –
judges #’s bottom paragraph does not define ‘kill zone’ to where we are comfortable.”
The minutes reflect “Court and Counsel at Bench.” Handwriting at the bottom of the
12
jury’s question states: “The reference to ‘kill zone’ in instruction #22 is as clear as we
can make it.”
II
DISCUSSION
Defendant’s argument begins: “Although there was sufficient evidence to
prove [defendant’s] intent to kill Mike and Jessica based on the shots he fired through the
living room window and Jessica’s room, [defendant’s] express malice towards Grace was
not shown by the evidence. Grace was not in the line of fire of any shots.” He further
argues the trial court erred in answering the jury’s question, wrongly instructed on the kill
zone theory which allowed the prosecutor to commit misconduct during argument and
that trial counsel was ineffective for failing to object to the prosecutor’s misconduct in
arguing these theories. To some extent, all of the arguments are intertwined in the briefs,
and we will do the same.
If the verdict is supported by substantial evidence, the reviewing court must
accord due deference to the trier of fact and not substitute its own evaluation of a
witness’s credibility for that of a fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.) To prove attempted murder, the prosecution must prove “‘specific intent to kill
and the commission of a direct but ineffectual act toward accomplishing the intended
killing.’ [Citation.]” (People v. Stone (2009) 46 Cal.4th 131, 136.)
An intent to kill exists when the perpetrator desires the victim’s death, or
knows to a substantial certainty that the victim’s death will occur. (People v. Booker
(2011) 51 Cal.4th 141, 178.)
In People v. Smith (2005) 37 Cal.4th 733, the defendant shot into the back
of a slowly moving car driven by a mother, whose baby was secured in a car seat directly
behind her. The California Supreme Court concluded “the evidence is sufficient to
support the jury’s verdict finding defendant acted with intent to kill the baby as well as
13
the mother. The fact that only a single bullet was fired into the vehicle does not, as a
matter of law, compel a different conclusion.” (Id. at p. 736.) With regard to the holding
in Smith, the Attorney General agrees with defendant “that there is insufficient evidence
under Smith” based on Grace Lester not being in the direct line of fire. We do not find
any indication the prosecutor made any argument along the lines of the Smith holding.
In People v. Bland (2002) 28 Cal.4th 313, the defendant was a member of a
criminal street gang and the victim belonged to a different gang. The defendant
approached a car the victim was driving and started shooting into the vehicle with a .38-
caliber handgun. The victim started driving away, and the defendant and another man
fired into the car. The car crashed into a pole, and the victim died of a gunshot wound to
the chest. The two passengers were wounded, and the jury convicted the defendant of
one first degree murder and two premeditated attempted murders. (Id. at p. 318.) “The
Court of Appeal reversed the two attempted murder convictions, finding the trial court
erroneously instructed the jury on the doctrine of transferred intent.” (Ibid.)
In reversing the judgment of the Court of Appeal which reversed the
attempted murder convictions, the California Supreme Court analyzed: “Someone who
in truth does not intend to kill a person is not guilty of that person’s attempted murder
even if the crime would have been murder—due to transferred intent—if the person were
killed. To be guilty of attempted murder, the defendant must intend to kill the alleged
victim, not someone else. The defendant’s mental state must be examined as to each
alleged attempted murder victim. Someone who intends to kill only one person and
attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim,
but not of others.” (People v. Bland, supra, 28 Cal.4th at p. 328.) The court continued:
“The conclusion that transferred intent does not apply to attempted murder still permits a
person who shoots at a group of people to be punished for the actions towards everyone
in the group even if that person primarily targeted only one of them. As to the
14
nontargeted members of the group, the defendant might be guilty of crimes such as
assault with a deadly weapon or firing at an occupied vehicle. [Citation.] More
importantly, the person might still be guilty of attempted murder of everyone in the
group, although not on a transferred intent theory.” (Id. at p. 329.) The court concluded
that “the evidence here virtually compelled a finding that, even if defendant primarily
wanted to kill Wilson, he also, concurrently, intended to kill the others in the car. At the
least, he intended to create a kill zone.” (Id. at p. 333.)
In People v. McCloud (2012) 211 Cal.App.4th 788, the defendants fired 10
shots from a semiautomatic handgun at a party with over 400 people. Three bullets
struck three victims. Tried by separate juries, both were convicted of second degree
murder for two deaths and one of the defendants was convicted of 46 counts of attempted
murder. (Id. at pp. 790-791.) That court stated: “The kill zone theory thus does not
apply if the evidence shows only that the defendant intended to kill a particular targeted
individual but attacked that individual in a manner that subjected other nearby individuals
to a risk of fatal injury.” (Id. at p. 798.) The court continued: “Rather, the kill zone
theory applies only if the evidence shows that the defendant tried to kill the targeted
individual by killing everyone in the area in which the targeted individual was located.
The defendant in a kill zone case chooses to kill everyone in a particular area as a means
of killing a targeted individual within that area. In effect, the defendant reasons that he
cannot miss the intended target if he kills everyone in the area in which the target is
located.” (Ibid.)
In his brief, defendant contends the court here erred in instructing with
CALCRIM No. 600 because the instruction suggested he created a kill zone merely by
subjecting individuals other than the primary target to a risk of fatal injury. When we
consider the instruction in its entirety, we cannot conclude the language is confusing with
regard to kill zone or zone of harm references in the instruction. Nor can we conclude the
15
jury thought it was being instructed that defendant could have created a kill zone merely
by subjecting individuals other than the primary target to a risk of fatal injury.
The record in this case is replete with evidence of defendant’s dislike of
Gallegos’s family and threats toward her family. Defendant thought everyone in her
family was trying to take her away from him. Defendant told her: “Watch what I’m
going to do to your family. I’m going to do something stupid to your family. Someone’s
going to pay.” Another time, he told her he was going to do something to her family or
to her, so she got in his car. In January 2011, during the time Gallegos was hiding at her
grandmother’s home, defendant’s mother telephoned Grace Lester to say she was
“concerned that he was going to either hurt Andrea or hurt one of her family members.”
Defendant was quite verbal about not wanting Gallegos to leave him, and
she was hiding from him. Also, in January 2011, Gallegos obtained a restraining order
against defendant, about which a jury could have reasonably concluded defendant was
upset. The slats of the living room blinds did not close completely, and it is likely some
movement could be seen from the outside when Michael Lester went back inside after
smoking his cigarette. There was evidence of multiple shots. Police found that three
bullets hit the house.
We find a jury could reasonably have inferred from this evidence that
defendant used lethal force and intended to kill everyone in the house in order to kill
Gallegos. There was evidence the manner in which defendant fired the shots, through
different windows on both the north and south sides of the home, demonstrates he
intended to kill everyone inside. Also there was evidence he had previously threatened to
harm all of the victims of the attempted murders because he thought they were each
trying to keep him from Gallegos.
16
We conclude there was sufficient evidence to support both theories
advanced by the prosecutor, that defendant attempted to murder Michael Lester, Grace
Lester and Jessica Gallegos individually, and that he intended to kill everyone in the
home to accomplish his intent to kill Gallegos. Under the circumstances we find in this
record, we cannot conclude the trial court erred in instructing the jury about a kill zone.
The Jury’s Question About the Kill Zone Instruction
With regard to the jury’s question about CALCRIM No. 600, the kill zone
instruction, we find no indication the jury was mislead or confused by the court’s
response to it. The court had a duty to help the jury understand the legal principles the
jury was asked to apply, which is what the court did in this case. (People v. Moore
(1996) 44 Cal.App.4th 1323, 1331.) In its question, the jury did not indicate any
misunderstanding of the legal principle involved, but merely indicated it desired to feel
more comfortable about the principle. There was no request for any further clarification.
We find no error in the court’s response to the jury question.
The Prosecutor’s Argument About the Kill Zone Instruction
As to defendant’s contention there was prosecutorial misconduct in closing
argument about a kill zone, under the federal Constitution, when a prosecutor’s
intemperate behavior comprises a pattern so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process, it is misconduct. (People v.
Guerra (2006) 37 Cal.4th 1067, 1124.) Under California law, misconduct is committed
by a prosecutor who uses deceptive or reprehensible methods to persuade a jury. (Ibid.)
It is also misconduct to misstate the law during closing argument. (People v. Gray
(2005) 37 Cal.4th 168, 217.)
17
“‘As a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety. [Citation.]’ [Citation.]” (People v. Hill (1998) 17
Cal.4th 800, 820.) Since trial counsel did not object at trial, the issue was not preserved
for appeal and was forfeited. (People v. Guerra, supra, 37 Cal.4th 1124.)
Here the prosecutor argued: “. . . If you’re standing in the middle of a
crowd and a suspect wants to kill somebody in that crowd and he’s willing to shoot into
that crowd, knowing that he could take out anybody else in that crowd, he’s responsible
for an attempted murder of everybody in that crowd, even if he doesn’t hit them. Okay?
That’s what the kill zone theory is all about.” The prosecutor’s explanation about a kill
zone does appear to be erroneous pursuant to the holding in People v. McCloud, supra,
211 Cal.App.4th 788.
Prosecutors are given wide latitude in trying their cases, but misstating the
law can amount to misconduct. (People v. Caldwell (2013) 212 Cal.App.4th 1262, 1268-
1269.) Nonetheless, even had defendant’s contention of prosecutorial misconduct been
preserved for appeal and even if the prosecutor argued an incorrect statement about the
law, we conclude defendant has not shown he was prejudiced by the prosecutor’s
argument. Where a prosecutor engaged in misconduct, the reviewing court considers the
record as a whole to determine if the alleged harm resulted in a miscarriage of justice.
(People v. Duncan (1991) 53 Cal.3d 955, 976-977.) In considering prejudice “when the
claim focuses upon comments made by the prosecutor before the jury, the question is
whether there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa
(1997) 15 Cal.4th 795, 841.)
18
The court carefully instructed the jury with respect to the intent requirement
omitted in the prosecutor’s argument: “In order to convict the defendant of the attempted
murder of Mike Lester, Grace Lester and Jessica Gallegos, the People must prove that the
defendant not only intended to kill Andrea Gallegos but also either intended to kill
everyone within the kill zone.” The court also instructed that defendant “acted willfully if
he intended to kill when he acted. The defendant . . . deliberated if he carefully weighed
the considerations for and against his choice and, knowing the consequences, decided to
kill. The defendant . . . premeditated if he decided to kill before acting.”
Further, the court told the jury that it must follow the law “as I explain it to
you,” and that “[i]f you believe that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.” “We presume the jury followed the
instructions it was given.” (People v. Chism (2014) 58 Cal.4th 1266, 1299.)
Accordingly, we find no prejudice resulting from the prosecutor’s misstatement of the
law. We conclude there has been no miscarriage of justice.
Alleged Ineffective Assistance of Counsel
Defendant contends his counsel was ineffective in not objecting to the
prosecutor’s arguments about a kill zone. Necessarily, since defendant has not
demonstrated prejudicial prosecutorial misconduct, he has likewise not demonstrated
ineffective assistance of counsel by failing to object on the basis of prosecutorial
misconduct. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
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III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
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