People v. Sek ( 2015 )

Filed 4/17/15
*
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE OF THE STATE OF B251196
CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent,
Super. Ct. No. NA087661)
v.
SAMNANG SEK, et al.,
Defendants and Appellants.
B254949
In re TERRY MY,
(Los Angeles County
On Habeas Corpus. Super. Ct. No. NA087661)
B254954
In re SAMNANG SEK,
(Los Angeles County
On Habeas Corpus. Super. Ct. No. NA087661)
APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J.
Ferrari, Judge. Affirmed in part, reversed in part. Petitions for habeas corpus denied.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner Samnang Sek.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner Terry My.
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of parts II and III of the Discussion.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell and Eric E. Reynolds, Deputy Attorneys General, for
Plaintiff and Respondent.
________________________________
Samnang Sek and Terry My were convicted by a jury of two counts of attempted
murder (counts 1 and 5) and related crimes. We affirm in part and reverse in part. In the
published portion of our opinion, we hold that (1) the trial court prejudicially erred by
giving the jury CALJIC No. 8.66.1, a legally erroneous and misleading instruction on the
“kill zone” theory of liability for attempted murder, and (2) the trial court erred by
imposing indeterminate life sentences for the attempted murder convictions when the
information did not allege that the attempted murders were willful, deliberate, and
premeditated. In the unpublished portion of our opinion, we reject defendants’ remaining
arguments.1
FACTS AND PROCEEDINGS BELOW
Late one night Saul Mejia parked on a street in Long Beach while his girlfriend,
Inez Perez, walked her daughter across the street to her mother’s apartment. A white car
pulled up alongside Mejia, and the passenger, later identified as defendant My, motioned
to Mejia to roll down his window. When Mejia did so, My asked him: “Where are you
from?” Mejia interpreted this as asking him what gang he belonged to. He was surprised
to be approached in this manner and only answered: “What? Huh?” My leaned out of
the car window and announced: “Asian Boys. Fuck you. Fuck you.” Mejia looked at
Perez across the street and told her to go inside. When he looked back My was pointing a
gun at him.
1
On appeal and the accompanying habeas corpus petitions, all of the issues raised
by defendants relate only to counts 1 and 5. We therefore affirm the convictions on the
remaining counts. But because the sentences on those counts might be affected by the
proceedings on remand concerning counts 1 and 5, we vacate defendants’ sentences in
their entirety and remand for resentencing on all counts.
2
Mejia sped off down the street. After he passed seven or ten houses, he stopped to
see if the white car was following him or if My and the driver were harassing Perez. He
could not see anyone bothering Perez, and the car was still down the street. Mejia called
911 to report what had just happened. While he was talking to the 911 operator, the
white car stopped near the rear of Mejia’s car. My got out of the car and started running
toward Mejia. My had something in his hand, but Mejia couldn’t tell what it was. Mejia
drove away, circled around the block, and came back to pick up Perez. When Perez left
her mother’s home and came out to the street, she could see the white car parked at the
end of the block. She ran to Mejia’s car and got in, and Mejia quickly drove away.
Before Mejia and Perez had gone far, they saw the white car approaching them
from behind. The car accelerated toward Mejia’s car as if it were going to try to come
alongside it. Mejia swerved to the left and to the right to prevent the white car from
coming alongside. Mejia made a right turn. As he did so, My fired six or seven shots
toward the passenger side of Mejia’s car. Three of the bullets struck the car: One hit the
front passenger side fender, one struck the rear passenger door, and one hit the car’s rear
bumper.
A jury found My and the white car’s driver, Sek, guilty of numerous felonies
arising out of this incident, including attempted murder of Mejia (count 1) and attempted
murder of Perez (count 5). Although the information did not allege that the attempted
murders were willful, deliberate, and premeditated, the court instructed the jury on that
issue, and the jury found as to both defendants and both counts that the attempted
murders were willful, deliberate, and premeditated. On the attempted murder counts,
My was sentenced to consecutive terms of 35 years to life including enhancements, and
Sek was sentenced to consecutive terms of 27 years to life including enhancements.
Each defendant filed a timely appeal and a petition for habeas corpus.
3
DISCUSSION
I. THE COURT PREJUDICIALLY ERRED BY GIVING THE CALJIC
“KILL ZONE” INSTRUCTION.
Defendants argue that the trial court erred by instructing the jury with CALJIC
No. 8.66.1 concerning the kill zone theory of liability for attempted murder, and that the
error was prejudicial. We agree.2
A. Instructional Error
In People v. McCloud (2012) 211 Cal.App.4th 788, 796-803 (McCloud), we
discussed the kill zone theory in detail. The following is a brief summary: “Attempted
murder requires 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; see McCloud, supra, 211 Cal.App.4th at p. 796.) Also, although the doctrine
of transferred intent can serve as the basis for a murder conviction, “intent to kill does not
transfer to victims who are not killed, and thus ‘transferred intent’ cannot serve as a basis
for a finding of attempted murder.” (People v. Perez (2010) 50 Cal.4th 222, 232; see
McCloud, supra, 211 Cal.App.4th at p. 797.) Nonetheless, if an attacker is attempting
to kill a targeted victim and uses “lethal force designed and intended to kill everyone in
an area around the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the
killing of that victim” (People v. Smith (2005) 37 Cal.4th 733, 745-746), then the attacker
intends to kill each person in that area and hence is guilty of the attempted murder of any
who survive the attack. (McCloud, supra, 211 Cal.App.4th at p. 797.) Placing a bomb
on a commercial airplane in order to blow up the plane as a means of killing a specific
passenger is a paradigmatic example. (See People v. Bland (2002) 28 Cal.4th 313,
329-330.)
As we emphasized in McCloud, “[t]he kill zone theory thus does not apply if the
evidence shows only that the defendant intended to kill a particular targeted individual
2
Respondent contends that defendants forfeited this claim of error by failing to
object in the trial court. We disagree, because the issue affects defendants’ substantial
rights. (See People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.)
4
but attacked that individual in a manner that subjected other nearby individuals to a risk
of fatal injury. Nor does the kill zone theory apply if the evidence merely shows, in
addition, that the defendant was aware of the lethal risk to the nontargeted individuals
and did not care whether they were killed in the course of the attack on the targeted
individual. 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 his intended target if he kills everyone
in the area in which the target is located.
“The kill zone theory consequently does not operate as an exception to the mental
state requirement for attempted murder or as a means of somehow bypassing that
requirement. In a kill zone case, the defendant does not merely subject everyone in the
kill zone to lethal risk. Rather, the defendant specifically intends that everyone in the kill
zone die. If some of those individuals manage to survive the attack, then the defendant—
having specifically intended to kill every single one of them and having committed a
direct but ineffectual act toward accomplishing that result—can be convicted of their
attempted murder.” (McCloud, supra, 211 Cal.App.4th at p. 798.)
McCloud also discussed CALJIC No. 8.66.1, which states: “A person who
primarily intends to kill one person, may also concurrently intend to kill other persons
within a particular zone of risk. [This zone of risk is termed the ‘kill zone.’] The intent
is concurrent when the nature and scope of the attack, while directed at a primary victim,
are such that it is reasonable to infer the perpetrator intended to kill the primary victim by
killing everyone in that victim’s vicinity. [¶] Whether a perpetrator actually intended to
kill the victim, either as a primary target or as someone within a [‘kill zone’] [zone of
risk] is an issue to be decided by you.” McCloud noted that “[t]he instruction’s repeated
references to a ‘zone of risk’ are misleading and have no basis in the law,” and that the
instruction incorrectly “suggests to the jury that a defendant can create a kill zone merely
5
by subjecting individuals other than the primary target to a risk of fatal injury.”
(McCloud, supra, 211 Cal.App.4th at p. 802, fn. 7.) We accordingly stated that “the
instruction should probably be revised.” (Ibid.) And we also observed that “the Supreme
Court has repeatedly explained that jury instructions on the kill zone theory are never
required.” (Id. at p. 802.)3
In the instant case, which was tried before McCloud was decided, the trial court
on its own motion elected to instruct the jury on the kill zone theory and used CALJIC
No. 8.66.1 (which has not been revised since McCloud). The court used all of the
bracketed phrases and did not modify the instruction.4
The court erred by giving that instruction. As noted in McCloud, the repeated
references to a “zone of risk” in CALJIC No. 8.66.1 are misleading and have no basis in
the law. (McCloud, supra, 211 Cal.App.4th at p. 802, fn. 7.) In addition, the instruction
suffers from other defects that are likely to mislead or confuse the jury or lend support to
legally erroneous arguments by the prosecution, as happened in this case.
First, the instruction uses the term “kill zone” but does not adequately define it.
The instruction purports to define “kill zone” as follows: “This zone of risk is termed the
3
The Attorney General did not petition the Supreme Court for review in McCloud.
The defendants did, but the Court denied their petitions.
4
We note that the court’s use of all of the bracketed phrases appears to violate the
use note for the instruction, which states the following: “‘Kill zone’ and ‘zone of risk’
have been bracketed in the last line of the instruction, to coincide with the third bracketed
sentence of the instruction. The court should decide what language to use, by choosing
whether to employ the phrase, ‘kill zone.’” (Use Note to CALJIC No. 8.66.1.) The use
note’s reference to “the third bracketed sentence of the instruction” seems to be a clerical
error, because the instruction contains only one bracketed sentence, and it is the second
sentence, not the third. In any event, the use note apparently means that if the court uses
the bracketed sentence, which introduces the term “kill zone,” then in the final sentence
the court should use the term “kill zone” and omit the term “zone of risk.” If, however,
the court omits the bracketed sentence, then in the final sentence the court should use the
term “zone of risk” and omit the term “kill zone.” The trial court in the instant case used
the bracketed sentence but then also used both bracketed phrases (rather than just one,
pursuant to the use note) in the final sentence, telling the jury it was to decide whether the
perpetrator intended to kill the victim “as someone within a ‘kill zone’ zone of risk.”
6
‘kill zone.’” (CALJIC No. 8.66.1.) That definition is informative only if the instruction
elsewhere supplies a sufficiently precise meaning for the phrase “[t]his zone of risk”—if
the jury wants to know “What zone of risk is the kill zone?”, the instruction should
provide the answer. But it does not. Rather, the phrase “[t]his zone of risk” in the
definition of the term “kill zone” refers back to the first sentence of the instruction, which
states: “A person who primarily intends to kill one person, may also concurrently intend
to kill other persons within a particular zone of risk.” (CALJIC No. 8.66.1.) So the only
information given to the jury concerning “[t]his zone of risk,” which is the “kill zone,” is
that it is “a particular zone of risk,” which contains people whom the defendant “may also
concurrently intend to kill.” (CALJIC No. 8.66.1.) What zone is that? Where is it, and
how far does it extend? How can the jury determine who is in it and who is not? The
jury will search in vain through CALJIC No. 8.66.1 for answers to those questions. All
that the instruction tells them is that the kill zone is a zone of risk (risk of what? physical
injury? death? and does it matter whether the defendant created the risk?) that may or
may not contain people whom the defendant intends to kill. Any crime scene contains an
indefinite number of spatial regions (“zones”) that fit that definition but that are not kill
zones, as that term has been defined by the Supreme Court.
Second, although attempted murder is a specific intent crime, and although the kill
zone theory relates exclusively to the mental state requirement for attempted murder,
CALJIC No. 8.66.1 does not contain a single reference to specific intent. The following
are all of the instruction’s references to intent (including all modifiers): “primarily
intends,” “concurrently intend,” “intent is concurrent,” “intended,” “actually intended.”
(CALJIC No. 8.66.1.) Moreover, the instruction is entitled “Attempted Murder—
Concurrent Intent” (CALJIC No. 8.66.1), so a reasonable jury would infer that the
instruction concerns the intent requirement for attempted murder.5 But because the
instruction expressly refers to “concurrent intent” and never mentions “specific intent,” a
5
The written instruction, bearing the title “Attempted Murder—Concurrent Intent,”
was given to the jury in this case.
7
jury could reasonably infer that the instruction is introducing a different concept of
intent—“concurrent intent”—that can be used as a substitute for the specific intent that
would otherwise be required under the attempted murder instruction. In this way,
reasonable jurors could conclude that CALJIC No. 8.66.1 authorizes them to convict
on an attempted murder charge without a finding of specific intent. Again, CALJIC
No. 8.66.1 does not contain a single explicit reference to specific intent.
Third, the instruction’s main substantive sentence suffers from an even more
severe defect. The sentence provides as follows: “The intent is concurrent when the
nature and scope of the attack, while directed at a primary victim, are such that it is
reasonable to infer the perpetrator intended to kill the primary victim by killing everyone
in that victim’s vicinity.” (CALJIC No. 8.66.1.) The instruction thus tells the jury that
“[t]he intent is concurrent” as long as “it is reasonable to infer” that the perpetrator
intended to kill everyone around the primary victim, regardless of whether the jury
actually draws that reasonable inference. That is, as long as the jury determines that the
inference would be reasonable, the instruction appears to mandate a factual finding of
“concurrent intent,” even if the jury does not actually draw that reasonable inference but
instead draws some other reasonable inference. That is patently incorrect. The authors of
CALJIC No. 8.66.1 presumably meant something like the following; “It is reasonable to
infer that the intent is concurrent if the nature and scope of the attack, while directed at a
primary victim, are such that it is reasonable to infer the perpetrator intended to kill the
primary victim by killing everyone in that victim’s vicinity.” But that is not what the
instruction says.6 Alternatively, the sentence in question would be considerably
6
We recognize that the sentence in question is largely based on the following
sentence quoted in Bland: “‘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.’” (Bland, supra, 28 Cal.4th at p. 329, quoting Ford v. State (1992)
330 Md. 682 [625 A.2d 984, 1000-1001].) Any lawyer or judge reading that passage of
Bland would understand that it means that it is reasonable to infer that the intent is
concurrent if it is reasonable to infer that the perpetrator intended to ensure harm to the
8
improved if the entire middle section were deleted, leaving only the following: “The
intent is concurrent when the perpetrator intended to kill the primary victim by killing
everyone in that victim’s vicinity.” But even then the sentence would still be flawed,
because it would still fail to tie the concept of “concurrent intent” to the specific intent
that is required for attempted murder.
In sum, CALJIC No. 8.66.1 tells the jury that there is a location somewhere called
a “kill zone,” which has something to do with some kind of risk, and which also has
something to do with something called “concurrent intent,” which is a mental state that
exists as long as a particular inference is reasonable, and which also has something to do
with attempted murder. But the instruction does not adequately (1) explicate those
concepts, (2) relate them to each other, or (3) relate them to the specific intent
requirement for attempted murder, which is ostensibly the instruction’s sole purpose.
The instruction’s problems appear to derive, at least in part, from its focus on the
terminology of “concurrent intent,” which the Supreme Court used in Bland. (See Bland,
supra, 28 Cal.4th at pp. 329-330.) The thinking behind the instruction seems to be that,
although attempted murder requires specific intent rather than general intent, and
transferred intent does not apply, there is another kind of intent, namely, concurrent
intent, which will serve as an adequate substitute for specific intent in appropriate
circumstances.
Such reasoning is erroneous and represents a misunderstanding of Bland.
Bland did not approve any deviation from the specific intent requirement for attempted
murder under any circumstances. Nor did Bland use the word “concurrent” as a legal
term of art. “Concurrent” means “happening at the same time” or “operating or
primary victim by harming everyone in that victim’s vicinity. To a lawyer or judge, the
passage obviously does not mean that the intent is in fact concurrent as long as it is
merely possible to conclude that the perpetrator harbored that intent. But lay jurors
cannot be presumed to overlook the plain language of CALJIC No. 8.66.1 and interpret
the instruction as meaning something other than what it literally says. On the contrary,
jurors are presumed to follow the instructions they are given. (People v. Yeoman (2003)
31 Cal.4th 93, 139.)
9
occurring at the same time.” (Merriam-Webster Online Dict. [as of Feb. 10, 2015].) Where the Supreme Court in
Bland used the words “concurrent” or “concurrently,” it could just as well have used
“simultaneous” or “simultaneously” or “at the same time.” For example, Bland explained
that the fact that a “person desires to kill a particular target does not preclude finding
that the person also, concurrently, intended to kill others.” (Bland, supra, 28 Cal.4th
at p. 329.) In that statement, the word “concurrently” could be replaced by
“simultaneously” (or just deleted; the word “also” is already doing the necessary work)
without any material change of meaning. In short, Bland’s discussion and endorsement
of the kill zone theory did not introduce a novel, technical legal concept of “concurrent
intent.” It merely recognized that it is possible to have two or more intentions at once.
Consequently, CALJIC No. 8.66.1 would be a sound and comprehensive statement of the
kill zone theory if it were revised to read, in its entirety, “A person who specifically
intends to kill a primary target may also specifically intend to kill persons other than the
primary target.” At the same time, it bears repeating that no instruction on the kill zone
theory is ever necessary.7 (People v. Stone (2009) 46 Cal.4th 131, 137-138; Smith,
supra, 37 Cal.4th at p. 746; Bland, supra, 28 Cal.4th at p. 331, fn. 6; McCloud, supra,
211 Cal.App.4th at p. 802.)
Respondent correctly points out that in reviewing a claim of instructional error,
we do not evaluate the challenged instruction in isolation but rather must examine the
claim “based on a review of the instructions as a whole in light of the entire record.”
(People v. Lucas (2014) 60 Cal.4th 153, 282.) Respondent further observes that the jury
was instructed to “[c]onsider the instructions as a whole and each in light of all the
7
The superfluity of the kill zone instruction is evident if one considers paradigmatic
examples of kill zone cases, such as putting a bomb on an airplane when only one person
on board is the primary target. (See Bland, supra, 28 Cal.4th at pp. 329-330.) In such a
case, a prosecutor unaided by the terms “kill zone,” “concurrent intent,” and the like will
still have no difficulty arguing that the defendant specifically intended to kill every single
person on the plane by blowing it up, even though killing all of those people was just a
means to kill a particular individual on the plane.
10
others,” and that the jury was correctly instructed on the specific intent requirement for
attempted murder. Respondent concludes that the trial court did not err by giving
CALJIC No. 8.66.1 because “reasonable jurors would not interpret CALJIC No. 8.66.1 as
allowing them to convict appellants for the attempted murder of Perez without a finding
of the requisite specific intent element.”
We are not persuaded. As we have explained, errors and confusing or misleading
language pervade CALJIC No. 8.66.1. Nothing in the other instructions cures those
errors or dispels those confusions. A reasonable jury would not know what to do with
the confusing and misleading “zone of risk” language of CALJIC No. 8.66.1. The
instruction does not come close to providing the jury with adequate information to
determine whether a kill zone exists and, if so, who is in it and who is not. The
instruction mandates a finding of “concurrent intent” on a basis that is legally unsound.
And no reasonable jury would know how to harmonize CALJIC No. 8.66.1’s statements
about “concurrent intent” with the specific intent requirement stated in the attempted
murder instruction (CALJIC No. 8.66), because CALJIC No. 8.66.1 says nothing about
specific intent.
For all of the foregoing reasons, we conclude that the trial court erred by giving
the jury CALJIC No. 8.66.1.
B. Prejudice
The remaining question is whether the instructional error was prejudicial.
“Instructional error regarding the elements of the offense requires reversal of the
judgment unless the reviewing court concludes beyond a reasonable doubt that the error
did not contribute to the verdict.” (People v. Chun (2009) 45 Cal.4th 1172, 1201.)
Defendants argue that because we cannot conclude beyond a reasonable doubt that the
erroneous kill zone instruction did not contribute to the verdicts on the attempted murder
counts as to victim Perez, we must reverse those convictions. We agree.
In McCloud, we applied “the standard articulated in People v. Watson (1956)
46 Cal.2d 818, 836-837” to determine whether the instructional error was harmless
11
(McCloud, supra, 211 Cal.App.4th at p. 803), rather than the harmless-beyond-a-
reasonable-doubt standard that we apply here. The reason for the different treatment
is that the error raised in McCloud was the giving of a kill zone instruction when
there was no substantial evidence to support a kill zone theory. (See McCloud, supra,
211 Cal.App.4th at p. 802 [“For all of the foregoing reasons, we conclude that the trial
court erred by instructing the jury on the kill zone theory. The record does not contain
substantial evidence to support application of the theory in this case.”].) The defendants
in McCloud did not argue that the instruction itself was legally erroneous. Here, in
contrast, we express no opinion on whether there was substantial evidence to support a
kill zone theory. Rather, we hold that the kill zone instruction was legally erroneous.
Because it is an instruction regarding the intent element of the offense of attempted
murder, we must reverse unless we conclude beyond a reasonable doubt that the error did
not contribute to the verdicts. (Chun, supra, 45 Cal.4th at p. 1201.)
Given the number and seriousness of the defects that infect CALJIC No. 8.66.1, it
might be tempting to infer that the instruction is unavoidably prejudicial in every case in
which it is used. In our view, however, that inference would be invalid, and we reject it.
For example, in a case in which the kill zone theory is not the only theory of attempted
murder liability advanced by the prosecution, or in which the evidence of guilt on the
attempted murder charges is overwhelming, or both, it might be possible to conclude
beyond a reasonable doubt that the giving of CALJIC No. 8.66.1 did not contribute to the
attempted murder verdicts. Consequently, the prejudicial effect of CALJIC No. 8.66.1
must be evaluated case by case.
Here, the prosecution’s sole theory of liability on the attempted murder charges
concerning Perez was the kill zone theory. The prosecutor argued as follows: “Now, by
the time Miss Perez gets in the car, they may not have the specific intent to target her,
she’s not the primary target at this point but there is this theory—this idea of concurrent
intent. Concurrent intent, the defendant—the defendant may primarily intend to kill one
person and also concurrently intend to kill other persons within a kill zone. The intent is
12
concurrent when it is reasonable to infer from the nature and scope of the attack that the
defendant intended to kill the primary victim by killing everybody within the victim’s
vicinity. Right. So they are targeting Mr. Mejia. Miss Perez just happens to be in the
line of fire. They are, like, ‘Well, I’m going to get Mr. Mejia even if I have to go through
Miss Perez. She is in the line of fire.’ That makes it so she is in the kill zone. [¶]
Imagine, if you will, if I wanted to kill somebody who was on a bus and I decided, ‘I’m
going to blow up that whole bus and everybody that’s on it.’ Right. Everybody in that
bus is in the kill zone. Everybody in the line of fire in this case is in the kill zone and
that’s Miss Perez. [¶] Now, Mr. Mejia may have been the primary target but Mr. My is
clearly thinking, ‘Well, I’m going to get to Mr. Mejia even if I have to go through Miss
Perez.’ That’s the kill zone and that means it is reasonable to infer based on that from the
nature of the attack and scope of the attack that the defendant intended to kill everybody
within that line of fire.”
The prosecutor’s argument was based on the defective features of CALJIC
No. 8.66.1. The prosecutor’s sole reference to specific intent was the statement that when
“Perez gets in the car, they may not have the specific intent to target her.” Thereafter, the
prosecutor argued for attempted murder liability entirely on the basis of “this idea of
concurrent intent” without ever linking it to the specific intent requirement. The
prosecutor also erroneously argued, in keeping with CALJIC No. 8.66.1, that “[t]he intent
is concurrent when it is reasonable to infer from the nature and scope of the attack that
the defendant intended to kill the primary victim by killing everybody with the victim’s
vicinity,” thus telling the jury that they must find concurrent intent if they determine that
the inference is reasonable.
Even putting all of those issues aside, consideration of the merits shows that it is
impossible to conclude that the kill zone instruction did not contribute to the attempted
murder verdicts as to victim Perez. The evidence firmly established that Perez was
sitting in the passenger seat of Mejia’s car when defendants fired multiple shots at the car
from the passenger side, so there was no significant dispute as to the actus reus of
13
attempted murder as to victim Perez. Consequently, the pivotal factual question on those
attempted murder charges concerned only the intent element: Did defendants specifically
intend to kill Perez? Or rather did they, in their attempt to kill Mejia, knowingly subject
Perez to a risk of fatal injury and not care whether she lived or died? If the former, then
they are guilty of the attempted murder of Perez. If the latter, then they are guilty of a
serious crime against Perez, but it is not attempted murder.
The heart of the prosecutor’s argument was his assertion that defendants
were thinking, “‘Well, I’m going to get Mr. Mejia even if I have to go through Miss
Perez.’” That characterization of defendants’ state of mind is at best ambiguous. It could
conceivably mean that defendants specifically intended to kill Perez because they
specifically intended to shoot Mejia through Perez, killing both. But that is far from the
most natural or obvious interpretation. The far more likely interpretation of the
prosecution’s statement is that defendants specifically intended to kill Mejia, knew that
by trying to shoot him they were putting Perez in mortal danger, and did not care whether
Perez lived or died. If that was defendants’ mental state, then they were not guilty of the
attempted murder of Perez. That is, the most natural interpretation of the prosecutor’s
own argument would actually mean, on a proper understanding of the law, that
defendants were innocent of the attempted murder of Perez. CALJIC No. 8.66.1 did not,
however, equip the jury with a proper understanding of the law. It is therefore likely that
the jury interpreted the prosecutor’s argument in the natural way but convicted
defendants of the attempted murder of Perez anyway, as a result of the confusion
generated by CALJIC No. 8.66.1 and the prosecutor’s reliance thereon. Indeed, the
prosecutor himself surely thought that he was arguing for defendants’ guilt, but on a
proper understanding of the law and the most natural interpretation of his description of
defendants’ mental state, his argument actually showed that they were innocent.
For all of the foregoing reasons, under the circumstances of this case we cannot
conclude beyond a reasonable doubt that the erroneous kill zone instruction did not
14
contribute to the attempted murder verdicts as to victim Perez. We therefore must
reverse those convictions.8
II. SUBSTANTIAL EVIDENCE SUPPORTS THE ATTEMPTED MURDER
CONVICTIONS AS TO VICTIM PEREZ.
Defendants contend their convictions of the attempted murder of Perez must be
reversed because there is insufficient evidence that they knew Perez was in the car when
they fired on it. Although we have already determined that the convictions for the
attempted murder of Perez must be reversed because of instructional error, if the
prosecution introduced insufficient evidence to sustain those convictions then they cannot
be retried on remand. We conclude, however, that the evidence was sufficient. The
evidence permitted the jury to infer that defendants knew Perez was in the passenger seat
when they fired six or seven shots into the passenger side of the car.
The evidence showed that when Perez left her mother’s house and walked out to
the street, she could see defendants’ car parked at the end of the block. The jury could
reasonably infer that if Perez could see the defendants’ car, defendants could see her and
so would have seen her getting into Mejia’s car. The evidence further showed that My
fired six or seven bullets at close range at the passenger side of Mejia’s car, where Perez
was sitting. The jury could reasonably infer from that evidence that My saw Perez sitting
in the passenger seat. Defendants’ firing of six or seven bullets at the passenger side of
the car, knowing that Perez was sitting there, constitutes substantial evidence of intent to
kill Perez.
III. THE EVIDENCE DID NOT SUPPORT AN INSTRUCTION ON THE
LESSER INCLUDED OFFENSE OF ATTEMPTED VOLUNTARY
MANSLAUGHTER.
Defendants argue that the court should have instructed the jury on the lesser
included offense of attempted voluntary manslaughter based on heat-of-passion and
imperfect self-defense. We disagree.
8
Under the circumstances of this case, our conclusion would be the same even if we
applied the more deferential standard of People v. Watson, supra, 46 Cal.2d 818.
15
The evidence did not support an instruction on attempted voluntary manslaughter
based on heat-of-passion. A driver swerving to prevent passing on a residential street is
not “sufficiently provocative that it would cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection.” (People v.
Manriquez (2005) 37 Cal.4th 547, 583-584.)
The evidence did not support an instruction on attempted voluntary manslaughter
based on imperfect self-defense. The self-defense doctrines are not available to a
defendant who, through his own wrongful conduct, created the circumstances of his
opponent’s attack. (People v. Enraca (2012) 53 Cal.4th 735, 761.)
IV. THE LIFE SENTENCES ON THE ATTEMPTED MURDER COUNTS
VIOLATED DEFENDANTS’ STATUTORY AND DUE PROCESS
RIGHTS.
Defendants argue that because the information did not allege that the attempted
murders were willful, deliberate, and premeditated, the life sentences imposed as to the
attempted murder counts violated their statutory and due process rights. We agree.9
A. Violation of Penal Code Section 66410 and Due Process
Attempted murder that is not willful, deliberate, and premeditated is punishable by
five, seven, or nine years in state prison. (Pen. Code, § 664, subd. (a).) Willful,
deliberate, and premeditated attempted murder, in contrast, “shall be punished by
imprisonment in the state prison for life with the possibility of parole,” but that sentence
“shall not be imposed unless the fact that the attempted murder was willful, deliberate,
and premeditated is charged in the accusatory pleading and admitted or found to be true
by the trier of fact.” (Ibid.) In addition, “[a] defendant has a due process right to fair
notice of the allegations that will be invoked to increase the punishment for his or her
crimes.” (People v. Houston (2012) 54 Cal.4th 1186, 1227 (Houston).)
9
Our reversal of the attempted murder convictions on count 5 (victim Perez) does
not render this issue moot, because both defendants also received life sentences for
willful, deliberate, and premeditated attempted murder as to count 1 (victim Mejia).
10
All subsequent statutory references are to the Penal Code.
16
Neither the original felony complaint, the first amended felony complaint, nor the
information alleged that the attempted murders were willful, deliberate, and
premeditated. The information was never amended to add such an allegation. Nor was
the allegation mentioned at the preliminary hearing, at the start of which the prosecutor
stated that he did not anticipate “any changes or additions . . . conforming to proof.” The
allegation also was not mentioned at defendants’ arraignment.
When the last witness at trial testified, the court informed the jurors that the
following day the court would instruct them on the law and they would then hear closing
arguments from counsel. After the jurors were excused and the court and counsel
finished discussing the admission of exhibits, the court and counsel proceeded to discuss
jury instructions, but the court first ask defendants if they wished to be present for that
discussion. Defendants conferred with counsel, elected not to be present, and then left, so
the entire discussion of jury instructions took place in their absence.
During the discussion of jury instructions, the court stated that it planned to give
the “willful and deliberate instruction.” There was no discussion of the issue beyond that
one passing reference, and defense counsel did not object to the instruction. Neither
the court nor counsel mentioned the sentencing implications of the allegation that the
attempted murders were willful, deliberate, and premeditated. Again, attempted
murder that is willful, deliberate, and premeditated is punished by an indeterminate
life sentence, but otherwise attempted murder is punishable by a maximum of nine years.
(§ 664, subd. (a).)
The verdict forms included the allegation that the attempted murders were
willful, deliberate, and premeditated, and the court instructed the jury on that issue. The
jury found the allegation true. The court sentenced both defendants to indeterminate life
terms on the attempted murder counts. As far as the record discloses, at no time before
the sentencing hearing were defendants themselves ever made aware that they could be
sentenced to life in prison on the attempted murder counts on the basis of the unpleaded
allegation of willfulness, premeditation, and deliberation.
17
Defendants’ life sentences on the attempted murder counts violate section 664,
subdivision (a), because “the fact that the attempted murder was willful, deliberate,
and premeditated” was not “charged in the accusatory pleading.” Those sentences also
violate defendants’ due process right “to fair notice of the allegations that will be invoked
to increase the punishment for [their] crimes.” (Houston, supra, 54 Cal.4th at p. 1227.)
Nothing in the record indicates that before the sentencing hearing defendants themselves
had any notice that the attempted murders were alleged to be willful, deliberate, and
premeditated and that such an allegation would be invoked to increase the punishment for
those crimes to an indeterminate life sentence instead of a maximum of nine years.
B. Forfeiture
In opposition, respondent argues that “[t]he circumstances in this case are virtually
identical to those in Houston” and that defendants therefore forfeited this issue by failing
to object in the trial court.11 We disagree.
Houston was a school shooting case in which the defendant was convicted on
four counts of first degree murder with special circumstances, as well as 10 counts of
attempted murder. (Houston, supra, 54 Cal.4th at pp. 1191-1192.) The indictment “did
not allege that the attempted murders were deliberate and premeditated.” (Id. at p. 1226.)
Nonetheless, “[a]t the end of the first day of defendant’s presentation of his case, the trial
court presented the parties with a preliminary draft of the verdict forms, which indicated
that the court would ask the jury to determine whether the attempted murders were
willful, deliberate, and premeditated.” (Ibid.) At that time, the court expressed its
understanding that “‘the prosecution is intending to charge premeditated attempted
murder,’” “‘[i]n other words, the type of attempted murder [that is] punished by life
imprisonment rather than five, seven, nine.’” (Ibid.) One week later, the court
“announced its intent to have the attempted murder verdict form list deliberate and
premeditated attempted murder as ‘a special finding.’” (Ibid.) Subsequently, “after the
11
Respondent’s argument does not expressly distinguish between defendants’ due
process claim and their claim for violation of section 664, subdivision (a).
18
close of evidence,” the court instructed the jurors “to determine whether the attempted
murders were willful, deliberate, and premeditated.” (Ibid.) The defendant did not object
either before the court submitted the case to the jury or at sentencing. (Ibid.)
Because the trial court (1) expressly informed the defendant on the first day of the
defense case that he would be sentenced to life imprisonment on the attempted murder
counts if convicted and (2) announced one week later that the attempted murder verdict
form would include deliberation and premeditation as a special finding, the Supreme
Court concluded on the merits that there was no due process violation because the
defendant “received adequate notice of the sentence he faced.” (Houston, supra,
54 Cal.4th at p. 1228.) And because the defendant did not object in the trial court,
when “[a] timely objection to the adequacy of the indictment would have provided an
opportunity to craft an appropriate remedy,” the Court further concluded that the
defendant had forfeited his claim for violation of section 664. (Id. at pp. 1228-1229
[“defendant forfeited his claim that the indictment did not comply with section 664”].)
Houston’s analysis included a discussion of People v. Arias (2010)
182 Cal.App.4th 1009, and that discussion is significant for our analysis as well.
“In Arias, the defendant was convicted of two counts of attempted murder but the
charging document failed to allege that the attempted murders were willful, deliberate,
and premeditated. (Id. at p. 1017.) The trial court proposed a set of jury instructions and
verdict forms to which neither party objected. (Id. at p. 1017, fn. 4.) The trial court
instructed the jury that if it found the defendant guilty of attempted murder, then it must
make a separate finding whether the attempted murder was done willfully and with
premeditation and deliberation. (Id. at p. 1017.) The verdicts did not include any special
findings with regard to premeditation and deliberation, but rather found ‘first degree
attempted murder’ as to both victims, even though attempted murder is not divided into
degrees [citation]. On that basis, the trial court imposed life imprisonment for the
convictions. (Arias, supra, 182 Cal.App.4th at p. 1017.) The Court of Appeal struck the
sentences, rejecting the Attorney General’s argument that the defendant had forfeited
19
his claim that the indictment was inadequate . . . . [Citation.]” (Houston, supra,
54 Cal.4th at p. 1228.) The Court in Houston concluded that “[w]e need not and do not
decide whether the Arias court erred in ruling that the defendant there did not forfeit his
claim that the indictment was inadequate,” because “it is unclear [in Arias] when the trial
court issued its proposed jury instructions and verdict forms to the parties and whether
this issue was discussed.” (Houston, supra, 54 Cal.4th at p. 1229.)
Houston’s treatment of Arias has two consequences for our analysis of
respondent’s forfeiture argument. First, Houston shows that failure to object in the trial
court on the basis of section 664 does not automatically result in forfeiture of the issue for
purposes of appeal. If it did, then Arias would be straightforwardly erroneous, but
Houston expressly declined to so hold. Second, under Houston the determination of
whether the issue was forfeited will depend upon detailed consideration of the course of
proceedings in the trial court, such as “when the trial court issued its proposed jury
instructions and verdict forms to the parties” and “whether this issue was discussed.”
(Houston, supra, 54 Cal.4th at p. 1229.) In Houston, the trial court expressed its
intention to instruct on willful, deliberate, and premeditated attempted murder at least one
week before the close of evidence, and at the same time the court informed the defendant
that the attempted murder counts would consequently be punishable by life in prison.
(Id. at p. 1226.) For that reason and others, the Court determined that the defendant
forfeited the section 664 issue by failing to object. (Id. at p. 1229.)
The present case is readily distinguishable from Houston. Here, the court did not
mention the instruction on willful, deliberate, and premeditated attempted murder until
after the close of testimony and after both defendants had left the courtroom. Neither the
court nor counsel mentioned the sentencing consequences of the unpleaded allegation
that the attempted murders were willful, deliberate, and premeditated. Nothing in the
record indicates that defendants themselves were made aware of the sentencing
implications of that allegation until the sentencing hearing, when they were sentenced to
life imprisonment on the attempted murder counts.
20
For all of the foregoing reasons, we reject respondent’s argument that defendants
forfeited their due process and section 664 claims by failing to object in the trial court.12
C. Prejudice
The sole remaining issue is prejudice. Because the life sentences on the attempted
murder counts violated defendants’ due process rights, respondent has the burden of
showing that the error was harmless beyond a reasonable doubt. (People v. Milosavljevic
(2010) 183 Cal.App.4th 640, 647.)
Respondent’s brief contains no argument on that issue.13 Moreover, we see no
way that respondent could demonstrate on this record that the error was harmless beyond
a reasonable doubt. If defendants had received adequate notice of the allegation that the
attempted murders were willful, deliberate, and premeditated, then they could have
prepared a defense against that allegation. They might have called other witnesses,
testified in their own defense, or altered their cross-examination of prosecution witnesses.
12
Again, the Court in Houston rejected the defendant’s due process claim on the
merits and further held that the defendant’s statutory claim for violation of section 664
was forfeited by failure to object. (Houston, supra, 54 Cal.4th at pp. 1227-1228
[“defendant received adequate notice of the sentence he faced”]; id. at p. 1229
[“defendant forfeited his claim that the indictment did not comply with section 664”].)
The Court did not hold that the due process claim was forfeited. But respondent’s
forfeiture argument in the present case fails to distinguish between the due process claim
and the statutory claim. Thus respondent appears to argue on the basis of Houston that
defendants forfeited both the due process claim and the statutory claim. But because the
due process claim in Houston was not forfeited, Houston would not support respondent’s
forfeiture argument as to that claim even if the present case were factually
indistinguishable from Houston, which it is not.
13
Respondent argues only that (1) defendants forfeited their due process and
statutory claims by failing to object to the error in the trial court, and (2) the failure to
object did not constitute ineffective assistance of counsel. On the issue of ineffective
assistance, respondent argues that counsel’s failure to object to the error was not
prejudicial, because the court would have amended the information if counsel had
objected. But respondent’s argument does not address the prejudicial effect of the error
itself (namely, the error of sentencing defendants to life imprisonment on the attempted
murder counts when the accusatory pleading did not allege that the attempted murders
were willful, deliberate, and premeditated).
21
Although respondent would presumably contend that the allegation would have made no
difference to the defense, that contention is speculative—there is nothing in this record
that proves it beyond a reasonable doubt.
Putting aside trial preparation, another potential source of prejudice is the error’s
effect on the plea bargaining process. “[I]n many instances a defendant’s decision
whether to plea bargain or go to trial will turn on the extent of his exposure to a lengthy
prison term.” (People v. Mancebo (2002) 27 Cal.4th 735, 752.) Here, the prosecution
made pretrial plea offers, and defendants rejected them. But because the prosecution had
not yet alleged that the attempted murders were willful, deliberate, and premeditated,
defendants were deprived of complete information about the sentences to which they
were exposed on each count. Moreover, the sentencing implications of the allegation
that the attempted murders were willful, deliberate, and premeditated were not limited
to the difference between a life sentence (with the allegation) and a maximum of
nine years (without it). When a defendant receives consecutive determinate sentences,
the subordinate terms are ordinarily one-third of the middle term, but consecutive
indeterminate sentences are not subject to any such limitation. (See §§ 669, 1170.1,
subd. (a).); People v. Felix (2000) 22 Cal.4th 651, 653-657.) Similarly, determinate
enhancements for subordinate determinate terms are limited to one-third of the
enhancement term, but that limitation again does not apply to determinate enhancements
for indeterminate terms. (Felix, supra, 22 Cal.4th at pp. 653-657.) Thus, with the
allegation that the attempted murders were willful, deliberate, and premeditated,
defendants faced the prospect of consecutive life sentences and consecutive 20-year
enhancements for firearm use. Without that allegation, defendants faced a maximum of
nine years for attempted murder plus 20 years for firearm use on the principal term, plus
one-third of seven years for attempted murder and one-third of 20 years for firearm use
on the subordinate term.
Again, respondent would presumably contend that none of this mattered, because
both defendants were already exposed to life sentences for shooting at an occupied motor
22
vehicle (§ 246) with a gang enhancement (§ 186.22, subd. (b)(4)). But again, it is
respondent’s burden to show that the error was harmless beyond a reasonable doubt.
Although it is possible that the allegation that the attempted murders were willful,
deliberate, and premeditated would have made no difference to defendants’ plea
negotiation posture, nothing in this record proves it beyond a reasonable doubt.
Defendants had no notice of the allegation before trial, and defendants apparently did not
learn of the allegation’s consequences until the sentencing hearing, after the jury had
already made its findings and been discharged. By then, the prosecution’s incentive to
negotiate had been eliminated. Indeed, even if defendants had been present when, after
the close of testimony, the court announced its intention to submit the allegation to the
jury, and even if at that time defendants had been fully informed of the allegation’s
consequences for sentencing, the prejudicial effect on plea negotiations would have
remained, because by then the prosecution had already invested the time and resources
necessary to try the case—at that point, the prosecution had little or nothing to gain by
negotiating.
For all of these reasons, respondent has not shown that the failure to give
defendants fair notice of the allegation and its sentencing implications, in violation
of defendants’ due process rights, was harmless beyond a reasonable doubt. We
accordingly vacate the true findings on the allegation that the attempted murder in
count 1 was willful, deliberate, and premeditated.14
14
Our resolution of this issue makes it unnecessary for us to address defendants’
argument that the prosecutor committed misconduct in his closing argument concerning
that allegation.
23
DISPOSITION
The convictions of both defendants on count 5 are reversed. The true findings on
the allegation that the attempted murder in count 1 was committed willfully, deliberately,
and with premeditation are vacated. The sentences of both defendants are vacated. The
judgments are otherwise affirmed, and the case is remanded for further proceedings
consistent with this opinion. The petitions for habeas corpus are denied.
CERTIFIED FOR PARTIAL PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
24