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NOT TO BE PUBLISHED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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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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
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intend to kill a specific victim or victims and at the same time intend to kill anyone in a
particular zone of harm or “kill zone.” In order to convict the defendant of the attempted
murder of [Rosas], the People must prove that the defendant not only intended to kill
anyone in [Miranda]’s car but also either intended to kill [Rosas], or intended to kill
anyone within the kill zone. If you have a reasonable doubt whether the defendant
intended to kill [Rosas] by harming everyone in the kill zone, then you must find the
defendant not guilty of the attempted murder of [Rosas].’ ” (Bruno-Martinez, supra,
C060660 at pp. 5-6.)
The jury found petitioner guilty on both charges and found true all enhancements.
Petitioner was sentenced on the attempted murder charge to a determinate middle term of
seven years, plus 20 years for the weapon enhancement. On the charge of shooting at an
occupied vehicle, petitioner received a consecutive, indeterminate term of 15 years to life
by virtue of the gang enhancement. (Bruno-Martinez, supra, C060660 at p. 4.)
Petitioner appealed, arguing, inter alia, the kill zone instruction was inappropriate
because he was charged with a single count of attempted murder of a specific victim. He
also claimed the instruction eliminated the specific intent to kill Rosas, the named victim.
We rejected this argument, reasoning the kill zone instruction given provided the jury two
options for finding intent to kill: “Either defendant intended to kill [Rosas], or he
intended to kill all four people in a group that included [Rosas].” (Bruno-Martinez,
supra, C060660 at p. 10.)
In December 2019, petitioner filed a habeas petition in the trial court in the first
instance, arguing the kill zone instruction does not meet the requirements articulated in
Canizales. The trial court denied the petition, finding any error was harmless beyond a
reasonable doubt. Petitioner then filed an original petition for writ of habeas corpus in
this court, the People filed an informal response at our request, and petitioner filed a
reply. In June 2020, we issued an order to show cause, the People filed a return in
August, and petitioner filed a traverse in September.
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DISCUSSION
Petitioner argues the modified kill zone instruction does not satisfy the analysis
articulated in Canizales and this error is prejudicial. Respondent concedes the kill zone
instruction was improper but not under Canizales and any error was harmless.1 We agree
with the People.
I
Legal Standards
A conviction for attempted murder requires a showing of a “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.) “Because direct evidence of a defendant’s
intent rarely exists, intent may be inferred from the circumstances of the crime and the
defendant’s acts.” (People v. Sánchez (2016) 63 Cal.4th 411, 457.) Whether a defendant
acted with such intent is a question for the trier of fact that can be proven by either direct
or circumstantial evidence. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
Transferred intent is insufficient for an attempted murder conviction. “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 (2002) 28 Cal.4th 313, 328.)
A concurrent intent, however, is sufficient for an attempted murder conviction.
When the defendant intends to kill a specific target and employs a means of attack
1 Respondent also argues Canizales is not retroactive and the claim is procedurally
barred because: (a) it is an insufficient evidence claim; and (b) we have already ruled on
this exact issue. Because we address and reject petitioner’s argument on its merits, we
need not reach these contentions.
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designed to kill everyone in the vicinity of the target in order to ensure the death of the
target, the defendant creates a “kill zone” around the target, and the jury may reasonably
infer the defendant possesses the concurrent intent to kill everyone within the kill zone.
(People v. Bland, supra, 28 Cal.4th at pp. 326-327, 329-330.) “ ‘The intent is concurrent
. . . when the nature and scope of the attack, while directed at a primary victim, are such
that we can conclude the perpetrator intended to ensure harm to the primary victim by
harming everyone in that victim’s vicinity.’ ” (Id. at p. 330.)
Our Supreme Court in Canizales refined the circumstances for the appropriate use
of a kill zone theory. (People v. Canizales, supra, 7 Cal.5th at p. 591.) In Canizales, two
gang members were convicted of attempted murder of rival gang members under the kill
zone theory after shooting into an outdoor block party from 100-160 feet away. (Id. at
pp. 599-601.) At trial, the jury was instructed on attempted murder with CALCRIM
No. 600 with a standard kill zone instruction permitting it to convict of attempted murder
of the named victim if the defendant “not only intended to kill . . . [the primary target] but
also either intended to kill . . . [the named victim], or intended to kill everyone within the
kill zone.” (Canizales, at p. 601 & fn. 3.) But there was no definition of what constituted
a kill zone beyond reference to a “ ‘particular zone of harm.’ ” (Id. at p. 613.)
After reviewing the history of the kill zone theory, the court found the intent to kill
a primary target is the focus of the theory. It concluded, “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. Taken together, such evidence will support a finding that the defendant harbored
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the requisite specific intent to kill both the primary target and everyone within the zone of
fatal harm.” (People v. Canizales, supra, 7 Cal.5th at p. 607.)
The court emphasized throughout the opinion that “trial courts must exercise
caution when determining whether to permit the jury to rely upon the kill zone theory.
Indeed, we anticipate there will be relatively few cases in which the theory will be
applicable and an instruction appropriate.” (People v. Canizales, supra, 7 Cal.5th at
p. 608.) Instead, “trial courts should reserve the kill zone theory for instances in which
there is sufficient evidence from which the jury could find that the only reasonable
inference is that the defendant intended to kill (not merely to endanger or harm) everyone
in the zone of fatal harm.” (Id. at p. 597.)
Applying this standard to the facts before it, the court reversed the convictions.
First, it found “the evidence concerning the circumstances of the attack (including the
type and extent of force used by [co-defendant]) was not sufficient to support a
reasonable inference that defendants intended to create a zone of fatal harm around a
primary target.” (People v. Canizales, supra, 7 Cal.5th at p. 610.) Second, this error was
prejudicial under any standard because “[t]he court’s error in instructing on the factually
unsupported kill zone theory, combined with the lack of any clear definition of the theory
in the jury instruction as well as the prosecutor’s misleading argument, could reasonably
have led the jury to believe that it could find that defendants intended to kill [the victim]
based on a legally inaccurate version of the kill zone theory -- that is, that defendants
could be found guilty of the attempted murder of [the named victim] if [codefendant] shot
at [the primary target] knowing there was a substantial danger he would also hit [the
named victim].” (Id. at p. 614.)
II
Analysis
We agree with the parties the kill zone instruction was erroneous. Rosas was the
named victim for the attempted murder charge and the court confirmed this in response to
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the jury’s question. Yet the supplementary kill zone instruction treated everyone in
Miranda’s car as the primary target. Because Rosas was in the car, the instruction treated
Rosas as both a primary target and the named victim.
This error, however, was harmless regardless of which prejudice standard is
applied. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 [Watson error test
applies when instruction correctly states law but does not factually apply]; People v.
Aledamat (2019) 8 Cal.5th 1, 13 [Chapman error test applies when instruction on a legal
liability theory is legally inadequate].) The instruction required the jury to find petitioner
had the specific intent to kill Rosas, regardless of a kill zone. So, the jury necessarily
found the specific intent required for attempted murder of Rosas even with the erroneous
supplementary instruction.
Breaking up the instruction will help elucidate this point. The jury in petitioner’s
case was told, in the supplementary kill zone instruction, that to convict petitioner of
attempted murder of Rosas, the named victim in the charge, it had to find: (1) petitioner
not only intended to kill everyone2 in the car but also (2) either intended to kill (a) Rosas
or (b) everyone in the kill zone. The instruction’s first step required the jury to find
petitioner intended to kill Rosas to convict him of attempted murder because Rosas was
in the car.
This is not a typical kill zone instruction because this was not a kill zone case. As
seen in Canizales and other kill zone cases, the instruction should require the jury to find
the defendant: (1) not only intended to kill the primary target but also (2) intended to kill
2 The instruction says “anyone” in Miranda’s car, but as we pointed out in
petitioner’s direct appeal, the jury likely understood “anyone” as used in the instruction to
mean “everyone.” (Bruno-Martinez, supra, C060660 at p. 5; see People v. Stone (2009)
46 Cal.4th 131, 138, fn. 3 [“a jury hearing about the intent to kill anyone within the kill
zone would probably interpret it as meaning the intent to kill any person who happens to
be in the kill zone, i.e., everyone in the kill zone”].) Though petitioner challenged this
understanding in his direct appeal, he does not reraise this argument here.
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(a) the named victim or (b) everyone within the kill zone. (See Canizales, supra,
7 Cal.5th at p. 601 & fn. 3; see CALCRIM No. 600.) What constitutes a kill zone is
fundamental in these cases because a jury must find the second prong satisfied and this
could be satisfied based on finding the creation of a kill zone. This is what Canizales
analyzed but is not an issue here because Rosas was the primary target. Even if the jury
did find petitioner created a kill zone, and this finding is insufficient after Canizales, it
still necessarily and properly found in the first prong a specific intent to kill Rosas. The
error of the instruction effectively eliminated the need to find petitioner created a kill
zone. Thus, as we found in petitioner’s direct appeal, the jury either found: (1) an intent
to kill Rosas or (2) an intent to kill everyone in the car, including Rosas. This satisfies
the intent requirement for an attempted murder conviction.
DISPOSITION
The order to show cause is discharged and the petition for writ of habeas corpus is
denied.
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Murray, J.
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