People v. Mumin ( 2021 )

Filed 8/19/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076916
Plaintiff and Respondent,
v. (Super. Ct. No. SCD261780)
AHMED MUMIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth K. So, Judge. Affirmed as modified.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney
General, Lance E. Winters, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier
and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ahmed Mumin of first degree murder (Pen. Code,
§§ 187, subd. (a), 189),1 burglary (§ 459), and robbery (§ 211). It found true
1 Subsequent statutory references are to the Penal Code.
the special circumstance allegations that the murder was committed during
the commission of a robbery and a burglary. (§ 190.2, subd. (a)(17).) The jury
also convicted Mumin on two counts of premeditated attempted murder of a
peace officer (§§ 187, subd. (a), 189, 664), two counts of assault on a peace
officer with a semiautomatic firearm (§ 245, subd. (d)(2)), two counts of
assault with a semiautomatic firearm (id., subd. (b)), and one count each of
possession of a firearm by a felon (§ 29800, subd. (a)(1)) and possession of
ammunition by a prohibited person (§ 30305, subd. (a)(1)). The jury found
true various firearm enhancements. (§§ 1192.7, subd. (c)(23), 12022.5,
subd. (a), 12022.53, subds. (b), (c), (d).) The trial court sentenced Mumin to
life imprisonment without the possibility of parole, plus an additional
consecutive indeterminate term of 55 years to life imprisonment and a
consecutive determinate term of 41 years four months.
Mumin appeals. He contends (1) the evidence did not support a jury
instruction on the kill zone theory of attempted murder liability, (2) the trial
court committed prejudicial misconduct by questioning Mumin’s counsel
about her closing argument in the presence of the jury, and (3) his convictions
for assault with a semiautomatic firearm should be vacated because they are
lesser included offenses of assault on a peace officer with a semiautomatic
firearm. The Attorney General concedes the two assault convictions should
be vacated or reversed, and we accept this concession. Mumin’s two
remaining contentions are without merit. We therefore modify the judgment
to vacate the two assault convictions (and the stayed sentences thereon) and
affirm the judgment as modified.
FACTS
On April 15, 2015, a clerk was working the night shift at a convenience
store in San Diego. A regular customer, Eric Schade, came into the store
2
around 11:00 p.m. and bought a can of beer. He returned a few hours later
and asked to borrow a lighter. The clerk thought Schade may have been
intoxicated.
As Schade and the clerk talked, a man walked into the store and
started yelling. He said, “Everybody get down,” and the clerk immediately
recognized that he was being robbed. The clerk removed the tray from a cash
register and placed it on the counter. The tray contained small bills, since
the clerk put larger bills into the safe.
The clerk crouched behind the counter and saw that the man was
holding a large silver semiautomatic handgun. The man was pointing the
handgun at Schade and telling him to get down. Schade did not respond, and
the clerk thought there may have been a struggle. The man shot Schade,
took money from the cash register tray, and left the store. The clerk called
police and checked on Schade, who was unconscious on the floor of the store.
When the man entered the store, he was wearing a bandana around his
face. During the robbery, the bandana began to come loose, and the clerk
could see the man’s face. The clerk later identified Mumin as the man who
robbed the store and shot Schade.
Police arrived and found Schade lying face down, surrounded by blood.
Paramedics took him to a hospital, where he later died. A medical examiner
determined that his cause of death was a single gunshot wound to the chest.
A San Diego Police Department criminalist performed expedited, same-
day DNA testing on a nine-millimeter cartridge casing found at the scene, as
3
well as a knit cap found nearby. Based on that testing, the criminalist
identified Mumin as a potential source of DNA obtained from the items.2
Homicide detectives provided Mumin’s information to the police
department’s special investigations unit. The special investigations unit
focuses on tracking, locating, and arresting felony suspects. They work in
plain clothes, often undercover. Detectives with the special investigations
unit identified two addresses that might be associated with Mumin. One
detective, Luke Johnson, made contact with Mumin on social media using an
assumed identity. Based on that contact, detectives believed Mumin was at
an apartment complex on Winona Avenue in San Diego. Johnson attempted
to set up a meeting with Mumin using his assumed identity, but he was
unsuccessful.
Nonetheless, the detectives gathered at the apartment complex and
began surveillance. The complex consisted of several buildings, pedestrian
walkways, and a parking lot.
Mumin was at the complex. He encountered a relative and asked him
for a ride. The relative asked where he wanted to go, and Mumin replied,
“Anywhere.” Mumin also asked whether there were police outside the
complex, which made the relative hesitant to help him. They talked for a
little while. To avoid giving Mumin a ride, the relative told Mumin he had to
leave behind a backpack he was carrying, but Mumin was “very adamant”
about keeping it. Eventually the relative told Mumin he would give him a
ride, but the relative did not intend to follow through. The relative went out
to his car, got a drink, and came back. He did not see Mumin again.
2 Subsequent testing confirmed, to a high degree of certainty, that
Mumin’s DNA matched the DNA on the cartridge casing. He was also
included as a possible major contributor to the mix of DNA obtained from the
knit cap.
4
Meanwhile, the detectives had information that one of Mumin’s family
members might live in a specific apartment, so they decided to send one
detective into the complex to locate it. Several detectives, along with a
number of uniformed police officers, waited outside.
The detective walked into the complex on foot. He was not wearing
anything that would identify him as a police officer. He saw one individual,
who gave him an unfriendly look. The detective continued walking and saw a
second individual, likely Mumin, who was holding a dark colored backpack.
Mumin noticed the detective and looked startled or scared. He backed away
and then turned and ran. The detective told his sergeant about the
encounter, and the sergeant told the detective to leave the complex while
they formulated a plan.3
Police surveillance of the apartment complex continued. Over the
radio, the detectives heard that a person in another apartment had reported
a burglary in progress. Several uniformed officers went into the complex to
investigate. The officers found a backpack near the apartment. The
backpack contained Mumin’s identification card, several rounds of nine-
millimeter ammunition, and a cell phone. The officers broadcast their
discovery over the radio.
Based on that information, the detectives were more confident Mumin
was in the complex somewhere. They decided to conduct a search. They
gathered in the parking lot and put on tactical vests identifying themselves
as police officers. The vests have a police badge on the front and the word
“police” in large white letters on the back. Some vests have the word “police”
3 Mumin’s relative testified that he saw a person who appeared to be an
undercover detective when he was walking back from his car. The relative
surmised that Mumin would stay hidden while the detective was present, so
he used the opportunity to walk back to his family’s apartment and go inside.
5
in white letters on the front as well. The five detectives were joined by more
than a dozen uniformed officers.
The detectives and uniformed officers went apartment-by-apartment
loudly identifying themselves as police and directing the residents to come
outside. It was nighttime and dark. A police helicopter flew overhead to
assist in the search for Mumin. It spent approximately an hour over the
complex.
Eventually two detectives, Johnson and James Mackay, walked over to
a building with four doors closely spaced together on the first floor and
apartments above. Police officers had just cleared the apartments on the
upper floor.
All four doors on the first floor led to a large community room, although
the detectives did not know that at the time. The doors were closed. Mackay
approached the right-most door (Door 1). It had hinges on the right and its
handle was on the left. Mackay stood slightly to the right, in front of the
hinges, and reached for the handle. Johnson followed Mackay and positioned
himself approximately 25 feet behind and to the left, in front of a neighboring
door (Door 2). They appear to have been double doors; the handle of Door 2
was approximately 12 to 18 inches away from the handle of Door 1.
Mackay turned the handle and began to open the door. Mumin was
hiding inside the community room and responded with gunfire. He fired
three shots. Mackay and Johnson both moved to the right, toward the corner
of the building, and took cover. Johnson shot five times through Door 1.
Mackay tripped and fell over a short wall, recovered, and shot three times at
Door 1. Mackay injured his left hand and suffered some scrapes when he fell.
Numerous police officers converged on the community room. After the
gunfire stopped, police commanded Mumin to exit the room. Mumin
6
complied. He had been shot, and he was transported to a hospital for medical
treatment. Police recovered a nine-millimeter semiautomatic handgun from
the community room, as well as a handgun magazine with blood on it.
Forensic analysis revealed that Mumin shot once through the opening
in Door 1 and twice through the closed, neighboring Door 2. The latter two
bullets apparently penetrated through Door 2. All three struck near a trash
area some distance away. The three bullets, as well as the bullet that killed
Schade earlier, were fired by the handgun recovered from the community
room. Mumin used hollow-point ammunition, which has a cavity in the nose
portion of the projectile. When a hollow-point projectile hits its target, the
cavity fills and causes the rest of the material to expand into a mushroom
shape. DNA testing of the handgun and associated magazine revealed strong
support for the inclusion of Mumin in the mixture of DNA found on those
items.
At trial, Mumin called a police department criminalist to testify. She
said she recovered $281 in cash from Mumin at the hospital, consisting of two
$100 bills and several smaller bills. In closing argument, Mumin’s counsel
denied that he was the man who robbed the convenience store or shot Schade.
But she conceded that Mumin was in the community room and shot at the
officers. She argued that he only intended to warn them, not to kill them.
DISCUSSION
I
Kill Zone Instruction
A
Mumin first contends the trial court erred by instructing the jury on
the kill zone theory of attempted murder liability because there was
insufficient evidence to support it under People v. Canizales (2019) 7 Cal.5th
7
591 (Canizales). Canizales clarified the scope of the kill zone theory of
liability and provided guidance to courts considering such an instruction. It
held, among other things, “Trial courts should tread carefully when the
prosecution proposes to rely on such a theory, and should provide an
instruction to the jury only in those cases where the court concludes there is
sufficient evidence to support a jury determination that the only reasonable
inference from the circumstances of the offense is that a defendant intended
to kill everyone in the zone of fatal harm. The use or attempted use of force
that merely endangered everyone in the area is insufficient to support a kill
zone instruction.” (Id. at p. 608.)
The emphasis in Canizales on the “only reasonable inference” has led to
a dispute in this appeal regarding the proper standard of review of a trial
court’s decision to instruct on this theory of liability. (Canizales, supra,
7 Cal.5th at p. 608.) Mumin argues, with some support in recent caselaw,
that we must ourselves be convinced that the only reasonable inference from
the evidence is that the defendant had the requisite intent. (See, e.g., In re
Rayford (2020) 50 Cal.App.5th 754, 779 (Rayford).) The Attorney General
responds, based on established principles of substantial evidence review, that
it is sufficient if we conclude the evidence supports a reasonable inference
that the defendant had the requisite intent, even if our review of the evidence
indicates the opposite inference would also be reasonable. (See, e.g., People v.
Ghobrial (2018) 5 Cal.5th 250, 277-278 (Ghobrial); People v. Cole (2004)
33 Cal.4th 1158, 1206 (Cole).)
We agree with the Attorney General. Canizales does not depart from,
and instead reaffirms, established principles governing a trial court’s decision
to instruct on a theory of liability and an appellate court’s review of such a
decision. The trial court must determine whether the evidence would support
8
a jury determination that the only reasonable inference was that the
defendant held the requisite intent. If a trial court’s decision to instruct is
challenged on appeal, we must make the same determination on de novo
review. But, in so doing, the issue is not whether we believe the only
reasonable inference from the evidence is that the defendant had the
requisite intent—just as, in other substantial evidence contexts, the issue is
not whether we believe the defendant to be guilty beyond a reasonable doubt.
The issue is whether the evidence would support such a determination by the
jury. Under these circumstances, it is well established that the evidence
supports a jury determination that an inference is the only reasonable
inference if we conclude it is at least a reasonable inference. We disagree
with Rayford to the extent it holds otherwise. We explain our reasoning in
greater detail below.
Canizales comprehensively examined the origin and development of the
kill zone theory of attempted murder liability. It explained, “To prove the
crime of attempted murder, the prosecution must establish ‘the specific intent
to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’ ” (Canizales, supra, 7 Cal.5th at p. 602.)
“Direct evidence of intent to kill is rare, and ordinarily the intent to kill must
be inferred from the statements and actions of the defendant and the
circumstances surrounding the crime.” (Ibid.) The kill zone theory defines a
specific category of circumstantial evidence that may support a defendant’s
intent to kill: “The kill zone theory looks to circumstantial evidence to
support a permissive inference regarding a defendant’s intent.” (Id. at
p. 606.) But in the absence of precise definition and proper jury instructions,
“the potential for misapplication of the kill zone theory remains troubling.”
(Id. at p. 607.)
9
The Supreme Court therefore held “that the kill zone theory for
establishing the specific intent to kill required for conviction of attempted
murder may properly be applied only when a jury concludes: (1) the
circumstances of the defendant’s attack on a primary target, including the
type and extent of force the defendant used, are such that the only reasonable
inference is that the defendant intended to create a zone of fatal harm—that
is, an area in which the defendant intended to kill everyone present to ensure
the primary target’s death—around the primary target and (2) the alleged
attempted murder victim who was not the primary target was located within
that zone of harm. Taken together, such evidence will support a finding that
the defendant harbored the requisite specific intent to kill both the primary
target and everyone within the zone of fatal harm.” (Canizales, supra,
7 Cal.5th at p. 607.)
The Supreme Court stressed that evidence supporting the kill zone
theory will rarely be found: “We emphasize that going forward 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.
Trial courts should tread carefully when the prosecution proposes to rely on
such a theory, and should provide an instruction to the jury only in those
cases where the court concludes there is sufficient evidence to support a jury
determination that the only reasonable inference from the circumstances of
the offense is that a defendant intended to kill everyone in the zone of fatal
harm. The use or attempted use of force that merely endangered everyone in
the area is insufficient to support a kill zone instruction.” (Canizales, supra,
7 Cal.5th at p. 608.)
10
Turning to the record before it, the Supreme Court framed its standard
of review as follows: “ ‘ “It is an elementary principle of law that before a jury
can be instructed that it may draw a particular inference, evidence must
appear in the record which, if believed by the jury, will support the suggested
inference.” ’ ” (Canizales, supra, 7 Cal.5th at p. 609.)
The Supreme Court noted that the evidence supported the inference
that one victim was the defendants’ primary target. (Canizales, supra,
7 Cal.5th at p. 609.) But, it explained, “an instruction on the kill zone theory
would have been warranted in this case only if there was substantial
evidence in the record that, if believed by the jury, would support a
reasonable inference that defendants intended to kill everyone within the ‘kill
zone.’ To qualify, the record would need to include (1) evidence regarding the
circumstances of defendants’ attack on [the primary target] that would
support a reasonable inference that defendants intentionally created a zone
of fatal harm around him, and (2) evidence that [the nontarget victim] was
located within that zone of fatal harm. Taken together, such evidence would
permit a finding that defendants harbored the requisite intent to kill [the
nontarget victim] because he was within the zone of fatal harm that
defendants intended to create around [the primary target].” (Id. at pp. 609-
610, italics added.) The Supreme Court considered and rejected the Attorney
General’s claim that the evidence was sufficient. It concluded “the evidence
concerning the circumstances of the attack . . . was not sufficient to support a
reasonable inference that defendants intended to create a zone of fatal harm
around a primary target.” (Id. at p. 610, italics added.)
Canizales reflects established principles of appellate review following a
trial court’s decision to instruct on a theory of liability. “A trial court must
instruct the jury on every theory that is supported by substantial evidence,
11
that is, evidence that would allow a reasonable jury to make a determination
in accordance with the theory presented under the proper standard of proof.
[Citation.] We review the trial court’s decision de novo. In so doing, we must
determine whether there was indeed sufficient evidence to support the giving
of [the] instruction. Stated differently, we must determine whether a
reasonable trier of fact could have found beyond a reasonable doubt that
defendant committed [the offense based on the proffered theory].” (Cole,
supra, 33 Cal.4th at p. 1206; accord, People v. Montoya (1994) 7 Cal.4th 1027,
1047 [“The trial court is charged with instructing upon every theory of the
case supported by substantial evidence”]; People v. Ceja (1993) 4 Cal.4th
1134, 1142-1143 (Ceja).) “There is no instructional error when the record
contains substantial evidence in support of a guilty verdict on the basis of the
challenged theory.” (People v. Jantz (2006) 137 Cal.App.4th 1283, 1290
(Jantz).)
Our review following a trial court’s decision to instruct is therefore
governed by familiar principles of substantial evidence review. (People v.
Nelson (2016) 1 Cal.5th 513, 550 [recognizing it is “essentially the same
standard”].) “We ‘review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that
is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] In determining whether a reasonable trier of fact could
have found [the defendant] guilty beyond a reasonable doubt, we presume in
support of the judgment ‘ “the existence of every fact the trier could
reasonably deduce from the evidence.” ’ ” (Ibid.)
“Appellate inquiry into the sufficiency of the evidence ‘does not require
a court to “ask itself whether it believes that the evidence at the trial
12
established guilt beyond a reasonable doubt.” [Citation.] Instead, the
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ [Citation.] In
other words, ‘it is the jury, not the appellate court which must be convinced of
the defendant’s guilt.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055-
1056.)
“ ‘ “ ‘The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence. [Citation.] “ ‘Although
it is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and
the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. “ ‘If
the circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the
judgment.’ ” ’ ” ’ ” ’ ” (Ghobrial, supra, 5 Cal.5th at pp. 277-278.)
“ ‘ “ ‘An appellate court must accept logical inferences that the jury
might have drawn from the evidence even if the court would have concluded
otherwise.’ ” ’ ” (People v. Salazar (2016) 63 Cal.4th 214, 242.) “The choice of
which inference is to be drawn from the facts, where more than one
reasonable inference is possible, is the function of the jury.” (People v.
Sweeney (1960) 55 Cal.2d 27, 51; accord, People v. Cardenas (2020)
53 Cal.App.5th 102, 120 (Cardenas).) “The presence of substantial evidence
supporting the [challenged] jury instruction is not undermined by the
existence of other interpretations of the evidence.” (Jantz, supra,
137 Cal.App.4th at p. 1291.)
13
The distinction between the jury, on one hand, and the appellate court,
on the other, reflects the fundamental rule that the jury, not the appellate
court, must be convinced of the defendant’s guilt beyond a reasonable doubt.
A jury must acquit a defendant if a reasonable alternative interpretation of
the evidence suggests innocence, because it necessarily creates reasonable
doubt. A conviction is only warranted if the jury believes the only reasonable
interpretation of the evidence suggests guilt. But if an appellate court
identifies a reasonable alternative interpretation based on its own review of
the evidence, it does not necessarily compel reversal, because an appellate
court need not be convinced of a defendant’s guilt beyond a reasonable doubt.
Instead, as noted, the appellate court asks whether the jury could have found
the defendant guilty beyond a reasonable doubt. It is the jury, of course, that
sees and hears the evidence. The appellate court has only the cold record
before it. An appellate court’s ability to identify a reasonable alternative
inference suggesting innocence does not mean that the jury, viewing the
evidence live at trial, could not have rejected that inference as unreasonable.
As one early case straightforwardly explained, “A conviction may not be set
aside because the evidence is susceptible of two reasonable inferences, one
looking to the guilt of the defendant and the other to his innocence.” (People
v. Green (1939) 13 Cal.2d 37, 42.)4
4 One long-standing example of this standard involves the intent element
for burglary, which must also generally be proved using circumstantial
evidence: “Although the People must show that a defendant charged with
burglary entered the premises with felonious intent, such intent must usually
be inferred from all of the facts and circumstances disclosed by the evidence,
rarely being directly provable. [Citations.] When the evidence justifies a
reasonable inference of felonious intent, the verdict may not be disturbed on
appeal.” (People v. Matson (1974) 13 Cal.3d 35, 41, italics added; accord,
People v. Carter (2005) 36 Cal.4th 1215, 1260-1261.) For an appellate court,
14
Thus, in Canizales, the Supreme Court explained that a kill zone
instruction was proper where “there is sufficient evidence to support a jury
determination that the only reasonable inference from the circumstances of
the offense is that a defendant intended to kill everyone in the zone of fatal
harm,” i.e., where there is sufficient evidence to support a jury finding of
intent beyond a reasonable doubt. (Canizales, supra, 7 Cal.5th at p. 608, first
italics added.) And, because it is the jury that must be convinced beyond a
reasonable doubt, the Supreme Court did not require that the appellate court
itself determine whether the inference supporting the instruction was the
only reasonable inference. Instead, it explained, “an instruction on the kill
zone theory would have been warranted in this case only if there was
substantial evidence in the record that, if believed by the jury, would support
a reasonable inference that defendants intended to kill everyone within the
‘kill zone.’ ” (Id. at pp. 609-610, italics added.) In other words, “ ‘ “ evidence
must appear in the record which, if believed by the jury, will support the
suggested inference.” ’ ” (Id. at p. 609.) An appellate court need not
determine that such an inference is the only reasonable inference.
Mumin points to a portion of the introduction in Canizales, where the
Supreme Court emphasized the following: “We caution . . . that trial courts
must be extremely careful in determining when to permit the jury to rely
upon the kill zone theory. The kill zone theory permits a jury to infer a
defendant’s intent to kill an alleged attempted murder victim from
circumstantial evidence (the circumstances of the defendant’s attack on a
primary target). But, under the reasonable doubt standard, a jury may not
find a defendant acted with the specific intent to kill everyone in the kill zone
the evidence must support a reasonable inference of the requisite intent; it
need not be the only reasonable inference.
15
if the circumstances of the attack would also support a reasonable alternative
inference more favorable to the defendant. (See CALCRIM No. 225.)
Permitting reliance on the kill zone theory in such cases risks the jury
convicting a defendant based on the kill zone theory where it would not be
proper to do so. As past cases reveal, there is a substantial potential that the
kill zone theory may be improperly applied, for instance, where a defendant
acts with the intent to kill a primary target but with only conscious disregard
of the risk that others may be seriously injured or killed. Accordingly, in
future cases 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.” (Canizales, supra,
7 Cal.5th at p. 597.)
This passage might be read to suggest that a trial court should not
instruct the jury on the kill zone theory of liability “if the circumstances of
the attack would also support a reasonable alternative inference more
favorable to the defendant.” (Canizales, supra, 7 Cal.5th at p. 597.) But,
after this statement, the Supreme Court goes on to repeat the standard
formulation: “Accordingly, in future cases 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 . . . everyone in the zone of fatal harm.” (Ibid.) As noted, this
formulation is simply another way of saying that the evidence must support a
defendant’s guilt beyond a reasonable doubt. It does not imply any change to
the established standard of review where the prosecution relies on
circumstantial evidence. If the evidence supports a reasonable inference of
the requisite intent, it necessarily follows that the jury could find it was the
16
only reasonable inference. Canizales confirms this principle: “[A]n
instruction on the kill zone theory would have been warranted in this case
only if there was substantial evidence in the record that, if believed by the
jury, would support a reasonable inference that defendants intended to kill
everyone within the ‘kill zone.’ ” (Id. at pp. 609-610, italics added.)
Moreover, if Canizales had intended to change the established standard of
review, the Supreme Court likely would have engaged in a more extensive
discussion of the standard and why it should be changed. The Supreme
Court’s use of the established standard in its own discussion confirms no
change was intended.
As noted, Mumin relies heavily on Rayford for a different standard. In
Rayford, two defendants were convicted of attempted murder based on the
kill zone theory of liability. (Rayford, supra, 50 Cal.App.5th at p. 765.) On
direct appeal, the court rejected one defendant’s contention that the evidence
was insufficient to support his convictions. (Id. at p. 766.) Later, in two
habeas corpus petitions, the defendants challenged the sufficiency of the
evidence under Canizales. (Id. at p. 767.) After holding that Canizales was
retroactive, the appellate court proceeded to determine “whether ‘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. 779, quoting
Canizales, supra, 7 Cal.5th at p. 597.) It noted, “The People argue the
circumstances of the shooting here support a reasonable inference the
shooters intended to kill everyone in the zone of fatal harm around [the
primary target].” (Rayford, at p. 779.) After reviewing certain facts
supporting the kill zone theory, the court stated, “These facts supported our
decision [on direct appeal].” (Ibid.) It went on, “However, other
17
circumstances support a reasonable alternative inference more favorable to
[the defendants], that the shooters acted not with the specific intent to kill
everyone in and in front of the house, but with conscious disregard of the risk
[several people] might be seriously injured or killed.” (Ibid.)
After reviewing the facts and various authorities, Rayford concluded,
“In light of these facts, coupled with the method of force employed . . . , there
is not sufficient evidence from which the jury could find the only reasonable
inference is that the shooters intended to kill everyone in a zone of fatal
harm. [Citation.] Rather, a reasonable alternative inference is that the
shooters fired on the house . . . , with conscious disregard of the risk [the
primary target] and the others inside and in front of the house would be
seriously injured or killed.” (Rayford, supra, 50 Cal.App.5th at pp. 780-781.)
Rayford did not discuss the standard of review in detail. It correctly
framed the issue as “whether ‘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[.]’ ” (Rayford, supra, 50 Cal.App.5th at p. 779, quoting Canizales,
supra, 7 Cal.5th at p. 597.) But it proceeded to distinguish between one
apparently reasonable inference drawn from the evidence, which would
support the kill zone theory, and a “reasonable alternative inference,” which
would not. (Rayford, at p. 779) Based on its identification of a “reasonable
alternative inference,” Rayford concluded that the trial court erred in
instructing the jury on the kill zone theory. (Id. at p. 781.) In this context,
the court noted that one piece of evidence was “as consistent with a specific
intent to kill as with an intent to punish . . . , with conscious disregard of the
risk of fatal harm or serious injury to [the primary target] and [their] family
and neighbors.” (Ibid.)
18
Rayford’s analysis appears inconsistent with the principles of
substantial evidence review described above. “A reviewing court may not
substitute its judgment for that of the jury. It must view the record favorably
to the judgment below to determine whether there is evidence to support the
instruction, not scour the record in search of evidence suggesting a contrary
view.” (Ceja, supra, 4 Cal.4th at p. 1143.) “The presence of substantial
evidence supporting the [challenged] jury instruction is not undermined by
the existence of other interpretations of the evidence.” (Jantz, supra,
137 Cal.App.4th at p. 1291.)
While it is not entirely clear, to the extent Rayford believed that one
reasonable inference from the evidence would support a kill zone instruction
under Canizales, but a reasonable alternative inference would not, the correct
result would have been to uphold the instruction. Where there is
“substantial evidence in the record that, if believed by the jury, would
support a reasonable inference that defendants intended to kill everyone
within the ‘kill zone,’ ” a trial court’s decision to instruct on the kill zone
theory of liability should be affirmed. (Canizales, supra, 7 Cal.5th at pp. 609-
610.) The fact that an appellate court can identify a reasonable alternative
inference pointing to a different intent does not warrant reversal.
Mumin also relies on People v. Mitchell (2019) 7 Cal.5th 561, 579, but
the alleged instructional error here is not comparable. Mitchell considered
whether a jury instruction misstated the law, not whether an instruction was
supported by the evidence. Similarly, Mumin cites People v. McCloud (2017)
15 Cal.App.5th 948, 956-957, for its discussion of the harmless-beyond-a-
reasonable-doubt standard of prejudice where a jury instruction omits an
element of an offense. Again, that is not the issue here. We note that
Mumin’s trial took place a few months after Canizales was decided, and the
19
trial court instructed the jury using a modified form instruction to account for
its holding. Mumin does not argue, as an independent ground for reversal,
that this modified instruction prejudicially misstated the law.
B
Substantively, Canizales set out two elements that must be met for the
kill zone theory to apply: “[T]he 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 the requisite specific intent to kill both the primary
target and everyone within the zone of fatal harm.” (Canizales, supra,
7 Cal.5th at p. 607.)
“In determining the defendant’s intent to create a zone of fatal harm
and the scope of any such zone, the jury should consider the circumstances of
the offense, such as the type of weapon used, the number of shots fired
(where a firearm is used), the distance between the defendant and the alleged
victims, and the proximity of the alleged victims to the primary target.
Evidence that a defendant who intends to kill a primary target acted with
only conscious disregard of the risk of serious injury or death for those
around a primary target does not satisfy the kill zone theory. As the Court of
Appeal recently explained in People v. Medina (2019) 33 Cal.App.5th 146,
20
156 . . . , the kill zone theory does not apply where ‘the defendant merely
subjected persons near the primary target to lethal risk. Rather, in a kill
zone case, the defendant has a primary target and reasons [that] he cannot
miss that intended target if he kills everyone in the area in which the target
is located. In the absence of such evidence, the kill zone instruction should
not be given.’ ” (Canizales, supra, 7 Cal.5th at p. 607.)
Turning to the facts before it, Canizales tailored the general standard
of review to the evidence in the record: “[A]n instruction on the kill zone
theory would have been warranted in this case only if there was substantial
evidence in the record that, if believed by the jury, would support a
reasonable inference that defendants intended to kill everyone within the ‘kill
zone.’ To qualify, the record would need to include (1) evidence regarding the
circumstances of defendants’ attack on [the primary target] that would
support a reasonable inference that defendants intentionally created a zone
of fatal harm around him, and (2) evidence that [the nontarget victim] was
located within that zone of fatal harm. Taken together, such evidence would
permit a finding that defendants harbored the requisite intent to kill [the
nontarget victim] because he was within the zone of fatal harm that
defendants intended to create around [the primary target].” (Canizales,
supra, 7 Cal.5th at pp. 609-610.)
In Canizales, the evidence showed that the shooter fired five bullets,
from around 100 feet away, on a wide city street. (Canizales, supra, 7 Cal.5th
at p. 611.) The bullets were “ ‘going everywhere’ ” and did not hit anyone.
(Ibid.) The Supreme Court concluded “that the evidence concerning the
circumstances of the attack (including the type and extent of force used by
[the shooter]) was not sufficient to support a reasonable inference that
defendants intended to create a zone of fatal harm around a primary target.”
21
(Id. at p. 610.) An instruction on the kill zone theory of liability was therefore
unwarranted. (Id. at p. 611.)
By contrast, the Supreme Court approved of a kill zone instruction in
the earlier case of People v. Bland (2002) 28 Cal.4th 313. “The record there
showed that the defendant and a fellow gang member approached a car in
which a rival gang member was sitting in the driver’s seat and opened fire
with a .38-caliber handgun, shooting numerous rounds both into the vehicle
and at the vehicle as it drove away. The driver was killed and his two
passengers, who were not gang members, were wounded. [Citation.] [The
Supreme Court] concluded that the evidence ‘virtually compelled’ a finding
that even if the defendant primarily intended to kill the rival gang member,
he also, concurrently, intended to kill the passengers in the car, or, at the
least, intended to create a zone of fatal harm.” (Canizales, supra, 7 Cal.5th at
p. 603, citing Bland, at pp. 318, 333.)
Following Canizales, courts found sufficient evidence to support a kill
zone conviction or instruction where the defendants rapidly fired 21 shots
“into a small space enclosed on three sides” (People v. Dominguez (2021)
66 Cal.App.5th 163, 187); where the defendants fired multiple bullets “at
close range against two people who were walking side by side in such close
proximity that they fell into each other” (People v. Windfield (2021)
59 Cal.App.5th 496, 517); and where a defendant fired 16 rounds from a high-
powered assault rifle at an occupied house, “targeting specific locations of the
house where the victims were present,” and apparently another defendant
fired at least six shots at another house using the same high-powered assault
rifle (People v. Cerda (2020) 45 Cal.App.5th 1, 17 (Cerda), review granted
May 13, 2020, S260915). Courts have found insufficient evidence where the
defendant fired three to seven shots at the driver of a stationary car at close
22
range, missing the passenger, “but there were no bullet holes in the car’s
body or doors that would have reflected a spray of bullets” (People v. Booker
(2020) 58 Cal.App.5th 482, 500); where the defendant first fired directly at
his target, “did not sweep his arm from side to side or spray the area with
bullets,” and thereafter fired while retreating, placing distance and
obstructions between himself and other potential victims (Cardenas, supra,
53 Cal.App.5th at pp. 114, 115); and where the defendant fired first at his
intended target and, after the target was mortally wounded, turned and fired
at other victims (People v. Mariscal (2020) 47 Cal.App.5th 129, 139).5
Here, as an initial matter, Mumin contends there was insufficient
evidence of a “primary target” that he specifically intended to kill. The kill
zone theory of liability requires a primary target. (Canizales, supra,
7 Cal.5th at p. 608; People v. Thompkins (2020) 50 Cal.App.5th 365, 394-395.)
The prosecution’s theory was that Mackay was Mumin’s primary target. The
5 In Rayford, the defendants fired at a gathering of people, and the house
behind them, from approximately 30 feet away. (Rayford, supra,
50 Cal.App.5th at p. 762.) In support of a kill zone instruction, Rayford
noted, “A series of eight bullets struck the house in an area surrounding [the
primary target] and the others on the grass, who had limited means of escape
as they funneled into the entrance of the house. One bullet struck [another
person]. The gunfire that traveled from east to west was powerful enough to
pierce multiple walls within the house.” (Id. at p. 779.) In support of the
“reasonable alternative inference,” Rayford noted, “Each shooter shot at most
four bullets at the house . . . . [One defendant] was standing in front of [the
primary target], but he shot ‘directly towards the house,’ not at her. He also
fired at the front window where no one was standing, but a cousin was
looking out. [The other defendant] only shot into the air. Neither [the
primary target] nor [another individual] testified any shooter targeted
specific victims. The eight bullets that were recovered were not fired at a
specific location, instead striking the house from the window to the right of
the front door to the wood to the left of the door. Although the weapons had
sufficient force to pierce the walls of the house, there was no evidence the
guns were rapid-firing semiautomatic or automatic weapons.” (Ibid.)
23
jury could reasonably find that Mumin fired at Mackay through the opening
in Door 1, at close range, just as Mackay began to open it. This evidence is
sufficient to support a reasonable inference that Mumin intended to kill
Mackay. “The act of firing toward a victim at a close, but not point blank,
range ‘in a manner that could have inflicted a mortal wound had the bullet
been on target is sufficient to support an inference of intent to kill . . . .’ ”
(People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; accord, People v. Perez
(2010) 50 Cal.4th 222, 230.) Mumin emphasizes other facts, such as his
apparent desire to avoid confrontation by hiding in the community room, but
they do not make an inference of intent to kill unreasonable. Contrary to
Mumin’s suggestion, we do not reweigh the evidence on appeal. “We presume
in support of the judgment the existence of every fact the jury reasonably
could deduce from the evidence. [Citation.] If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the judgment is not
warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding.” (People v. Jennings (2010) 50 Cal.4th
616, 638-639; accord, Jantz, supra, 137 Cal.App.4th at p. 1291.)
In his opening brief, Mumin claims he only fired at Door 2, not Door 1,
and therefore did not target Mackay. He cites only his counsel’s closing
argument as support. His counsel’s argument is not evidence. (See In re
Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11; People v. Superior Court (Crook)
(1978) 83 Cal.App.3d 335, 341.) The evidence plainly supports the reasonable
inference that Mumin fired three shots, two that went through Door 2
(because it had two bullet holes going from inside the community room
outward) and one that went through the opening in Door 1. Indeed, on reply,
Mumin appears to backtrack, noting that “two of the three shots went
through Door 2” and the third went somewhere else. Mumin has not shown
24
the evidence did not support his specific intent to kill Mackay as the primary
target.
Mumin next contends there was insufficient evidence that he intended
to create a zone of fatal harm around Mackay, i.e., an area in which Mumin
intended to kill everyone present to ensure Mackay’s death. We disagree.
Based on the evidence, the jury could reasonably have found the following:
Mumin armed himself with a semiautomatic firearm and hollow-point
bullets. Hollow-point bullets are particularly damaging based on their
design. Mumin had recently fatally shot a nonthreatening individual who
would not comply with his demands. After trying and failing to escape from
his apartment complex, Mumin hid in the community room with his loaded
firearm. He heard numerous police officers calling around the apartment
complex, as well as a police helicopter overhead. When Mackay began to
open Door 1, Mumin believed the police had found his hiding place. In rapid
succession, Mumin fired through the opening at Door 1 and swept over to
Door 2, firing two more shots that penetrated through the closed door and
struck objects some distance away. The jury could reasonably conclude,
based on this evidence, that Mumin was unsure exactly where the police
officer opening the door was located and intended to create a zone of fatal
harm in front of both double doors, killing anyone in that zone in order to
ensure that the police officer (Mackay) would be killed as well. It was the
last stand of a desperate killer who had endured more than an hour in the
community room listening and waiting for police to find him.
In arguing that the evidence was insufficient to instruct on the kill zone
theory of liability, Mumin frames the issue as whether “the only reasonable
inference” to be drawn from the evidence is that he intended to create a kill
zone. We have already explained why this standard of review is incorrect.
25
Mumin’s contention therefore fails at the outset. (See People v. Foss (2007)
155 Cal.App.4th 113, 126.) Nonetheless, we will consider his arguments as if
they had been made under the proper standard.
Mumin focuses on the number of shots fired, again claiming they were
all fired at Door 2. We have already explained why the evidence would
support a different finding. And while the number of shots fired was not
high, the type of firearm and ammunition used, as well as the surrounding
circumstances, support the reasonable inference that Mumin intended to
create a kill zone. His firearm was semiautomatic, and he fired his three
shots rapidly in quick succession. His bullets were hollow point, which are
designed to cause greater damage. They were powerful enough to penetrate
a closed door and travel some distance away. Mumin rapidly sprayed bullets
across the two doors, without warning and without delay, minimizing the
chance that anyone on the other side could escape. Moreover, Mackay and
Johnson immediately returned fire, wounding Mumin and likely persuading
him that continuing the firefight was unwise. A jury could reasonably infer
that the three shots fired by Mumin were not a product of his unwillingness
to use greater force, but were instead limited by the officers’ quick and
effective response.
Mumin emphasizes the openness of the area facing the community
room. Generally, an open area tends to undermine the inference that a
defendant intended to create a kill zone because, among other reasons, it
would be unlikely for a defendant to believe he could cover such a large area
with lethal force using a conventional firearm. Here, however, Mumin’s area
of focus was the area behind Door 1 and Door 2. The evidence supports the
reasonable inference that Mumin intended to, and did, blanket this more
limited area with lethal force. It is of lesser relevance that Johnson had a
26
more open area beside and behind him, away from the doors, since his exact
position and surroundings were not known to Mumin. The limited physical
space facing Mumin, and his coverage of that space with lethal force,
supports the reasonable inference that Mumin intended to kill both Mackay
and anyone else on the opposite side of the doors. The openness of the area
facing the community room is not irrelevant, but it also does not make
unreasonable the inference that Mumin intended to create a kill zone in a
subset of that area facing Door 1 and Door 2.6
Mumin argues that the kill zone theory is unsupported because there
was no evidence Mumin knew anyone besides Mackay was on the other side
of the doors. He is incorrect. The kill zone theory of liability does not require
that a defendant be specifically aware of other victims within the kill zone.
“Whether or not the defendant is aware that the attempted murder victims
were within the zone of harm is not a defense, as long as the victims actually
were within the zone of harm.” (People v. Adams (2008) 169 Cal.App.4th
1009, 1023.) Instead, the focus remains on the defendant’s intent. A
defendant’s awareness of potential victims is relevant to that intent, but it is
not dispositive. (Cerda, supra, 45 Cal.App.5th at p. 20, review granted.)
Here, based on the evidence of extensive police activity at the complex, it
would be reasonable to infer that Mumin was aware that the police officer
opening the door was unlikely to be alone. But even if Mumin could not be
sure that another officer was with Mackay, the evidence supports the
6 Similarly, Mumin notes that no one was injured by the three shots he
fired. This fact is relevant but not dispositive. The sufficiency of the
evidence supporting a kill zone instruction “does not turn on the effectiveness
or ineffectiveness of the defendant’s chosen method of attack.” (Canizales,
supra, 7 Cal.5th at p. 611.) The circumstances of the shooting support a
reasonable inference that Mumin harbored the requisite intent,
notwithstanding the lack of injury, for the reasons we have already discussed.
27
reasonable inference that Mumin intended to kill anyone who ended up being
behind Door 1 and Door 2 in order to ensure Mackay was also killed. This
inference is sufficient to support the kill zone theory of liability.
The kill zone theory additionally requires evidence that the victim who
was not the primary target was located within the zone of fatal harm.
(Canizales, supra, 7 Cal.5th at p. 610.) “[T]he jury is to consider the
circumstances of the attack, including the type and extent of force used
during the attack, to determine the scope of that zone and whether the
alleged victim was within the zone.” (Id. at p. 612.) Here, based on the
firearm and ammunition used, the number of shots, the trajectory of Mumin’s
bullets, and the distance they travelled, a jury could reasonably find that the
zone of fatal harm encompassed the area in front of Door 1 and Door 2, from
the doors themselves to somewhere behind where Johnson was standing.
When Mackay opened Door 1, and Mumin began shooting, Johnson was
standing in front of Door 2 approximately 25 feet away. Mumin specifically
fired two shots through Door 2, and those two hollow-point bullets struck a
trash area behind Johnson. Johnson was located in the area traversed by the
bullets, and he could have been struck by them. Based on this evidence, a
jury could reasonably infer that Johnson was located in the zone of fatal
harm.
Mumin claims that the kill zone, if any, was only located in front of
Door 1. In Mumin’s view, because Johnson was standing in front of Door 2,
and only moved toward Door 1 after Mumin stopped shooting, he was not
located in the kill zone. Mumin’s limited view of the scope of the kill zone is
unwarranted. As discussed, a jury could reasonably find that the kill zone
encompassed the area in front of both Door 1 and Door 2 and Johnson was
located in this area.
28
In sum, based on the evidence, a jury could reasonably find that Mumin
intended to create a zone of fatal harm around Mackay, i.e., an area in which
Mumin intended to kill everyone present to ensure Mackay’s death, and that
Johnson was located in that zone. The evidence therefore supports an
instruction on the kill zone theory of liability under Canizales, and the trial
court did not err by providing such an instruction to the jury.
II
Question Regarding Defense Counsel’s Closing Argument
Mumin next contends the trial court committed misconduct by
questioning his counsel, in the presence of at least some jurors, about her
closing argument. In that argument, Mumin’s counsel conceded his guilt on
certain offenses stemming from the community room shooting, but she
maintained he was not guilty of attempted murder. After the court excused
the jury, the court asked, “And for the record, this approach on the argument
has been discussed with your client?” Mumin’s counsel started to respond,
and the court said, “Approach that you just made.” Mumin’s counsel
responded, “I would wait till everyone is out of the room.” The court said, “So
the answer is yes?” Mumin’s counsel answered, “Yes.” The transcript does
not reflect whether there were any pauses or delays between the statements.
After a break, outside the presence of the jury, the court continued to discuss
whether Mumin objected to his counsel’s approach. (See McCoy v. Louisiana
(2018) 584 U.S. __ [138 S.Ct. 1500, 1510] [“[C]ounsel may not admit her
client’s guilt of a charged crime over the client’s intransigent objection to that
admission.”].)
“Although the trial court has both the duty and the discretion to control
the conduct of the trial [citation], the court ‘commits misconduct if it
persistently makes discourteous and disparaging remarks to defense counsel
29
so as to discredit the defense or create the impression it is allying itself with
the prosecution.’ ” (People v. Snow (2003) 30 Cal.4th 43, 78 (Snow).) “ ‘When
“the trial court persists in making discourteous and disparaging remarks to a
defendant’s counsel and witnesses and utters frequent comment from which
the jury may plainly perceive that the testimony of the witnesses is not
believed by the judge . . . it has transcended so far beyond the pale of judicial
fairness as to render a new trial necessary.” ’ [Citation.] But a defendant
seeking relief on such a theory must establish prejudice. ‘ “[O]ur role . . . is
not to determine whether the trial judge’s conduct left something to be
desired, or even whether some comments would have been better left unsaid.
Rather, we must determine whether the judge’s behavior was so prejudicial
that it denied [the defendant] a fair, as opposed to a perfect, trial.” ’
[Citation.] We make that determination on a case-by-case basis, examining
the context of the court’s comments and the circumstances under which they
occurred. [Citation.] Thus, the propriety and prejudicial effect of a particular
comment are judged by both its content and the circumstances surrounding
it.” (People v. Abel (2012) 53 Cal.4th 891, 914 (Abel).)
As an initial matter, we conclude Mumin forfeited his claim of error by
failing to object to the court’s question. “[A] defendant who fails to make a
timely objection to the claimed misconduct forfeits the claim unless it appears
an objection or admonition could not have cured any resulting prejudice or
that objecting would have been futile.” (Abel, supra, 53 Cal.4th at p. 914.)
Mumin contends his counsel’s request to discuss her approach outside the
presence of the jury was sufficient. We disagree because her request did not
inform the court that she believed the court had committed misconduct.
Mumin asserts “[i]t would have been futile, if not dangerous, to push any
further” in front of the jury. But Mumin’s counsel could have objected outside
30
the presence of the jury. “[T]he circumstances in no way suggest an objection
and a request to have the jury admonished would have found an
unsympathetic jurist.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1320
(Seumanu).)
Even considering Mumin’s contention on the merits, and assuming
without deciding that the trial court’s question was misconduct, Mumin has
not shown prejudice. It is unlikely a lay jury understood that the trial court’s
question was unusual in any way. On its face, the question does not imply
any criticism of the argument. The court merely asked if Mumin’s counsel
had discussed her approach with Mumin. (See Snow, supra, 30 Cal.4th at
p. 79 [“In asking defense counsel whether a line of questioning . . . was within
the scope of redirect, the court neither disparaged counsel’s efforts nor
prevented counsel from pursuing cross-examination.”].) The question was
also one isolated incident of alleged misconduct. Mumin has not shown it
deprived him of a fair trial or had any effect on the jury’s verdict.
(See Seumanu, supra, 61 Cal.4th at p. 1321 [“the trial court’s single, brief
comment could not possibly have been prejudicial”]; see also Abel, supra,53 Cal.4th at p. 914; Snow, at pp. 81-82.)
Mumin also has not shown he was deprived of his right to effective
assistance of counsel. He relies on People v. Diggs (1986) 177 Cal.App.3d 958,
970, where defense counsel in closing argument “effectively withdrew a
crucial defense and admitted his client’s guilt without his client’s consent.”
Mumin raises no similar error. His focus is solely on the court’s question,
which was not prejudicial misconduct for the reasons already discussed.
31
III
Lesser Included Offenses
Mumin contends his convictions for assault with a semiautomatic
firearm (§ 245, subd. (b)) should be vacated because they are lesser included
offenses of assault on a peace officer with a semiautomatic firearm (id.,
subd. (d)(2)). The Attorney General concedes he could not be convicted of
both sets of offenses. We agree as well.
“In general, a person may be convicted of, although not punished for,
more than one crime arising out of the same act or course of conduct. ‘In
California, a single act or course of conduct by a defendant can lead to
convictions “of any number of the offenses charged.” [Citations.]’ [Citation.]
Section 954 generally permits multiple conviction. Section 654 is its
counterpart concerning punishment. It prohibits multiple punishment for
the same ‘act or omission.’ When section 954 permits multiple conviction, but
section 654 prohibits multiple punishment, the trial court must stay
execution of sentence on the convictions for which multiple punishment is
prohibited.” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) “A judicially
created exception to the general rule permitting multiple conviction ‘prohibits
multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f
a crime cannot be committed without also necessarily committing a lesser
offense, the latter is a lesser included offense within the former.’ ” (Id. at
p. 1227.)
“To ascertain whether one crime is necessarily included in another,
courts may look either to the accusatory pleading or the statutory elements of
the crimes. When, as here, the accusatory pleading incorporates the
statutory definition of the charged offense without referring to the particular
facts, a reviewing court must rely on the statutory elements to determine if
32
there is a lesser included offense. [Citations.] ‘The elements test is satisfied
if the statutory elements of the greater offense include all of the statutory
elements of the lesser offense, such that all legal elements of the lesser
offense are also elements of the greater. [Citation.] In other words, “ ‘[i]f a
crime cannot be committed without also necessarily committing a lesser
offense, the latter is a lesser included offense within the former.’ ” ’
[Citation.] Nevertheless, if the same evidence is required to support all
elements of both offenses, there is no lesser included offense. [Citation.]
Each is its own offense, based on different statutes that apply to the same
conduct; neither can be said to be a lesser of the other.” (People v. Robinson
(2016) 63 Cal.4th 200, 207.)
Here, as the parties agree, the greater offense of assault on a peace
officer with a semiautomatic firearm (§ 245, subd. (d)(2)) includes all of the
statutory elements of the lesser offense of assault with a semiautomatic
firearm (id., subd. (b))—plus the additional element that the assault must be
upon the person of a peace officer, who the defendant knows or reasonably
should know is a peace officer engaged in the performance of his or her
duties, and who is engaged in the performance of his or her duties (id.,
subd. (d)(2)). Mumin therefore could not be convicted of both sets of assault
offenses. His convictions on the lesser included offenses must be vacated.
(See People v. Vela (2012) 205 Cal.App.4th 942, 945; People v. Oldham (2000)
81 Cal.App.4th 1, 16.) Because the court stayed the sentences for those
convictions under section 654, our disposition does not affect Mumin’s
sentence and remand for resentencing is unnecessary. (See People v.
Espinoza (2002) 95 Cal.App.4th 1287, 1321-1322.)
33
DISPOSITION
The judgment is modified to vacate Mumin’s convictions for assault
with a semiautomatic firearm, the attached enhancements, and the stayed
sentences thereon. As so modified, the judgment is affirmed. The trial court
is directed to prepare an amended abstract of judgment and forward it to the
Department of Corrections and Rehabilitation.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
34