IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S167051
v.
Ct.App. 2/1 B198165
RODRIGO PEREZ,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA298659-01
Defendant fired a single bullet at a distance of 60 feet, from a car going 10 to 15
miles per hour, at a group of seven peace officers and a civilian who were standing less
than 15 feet apart from one another in a dimly lit parking lot late on the night in question.
There was evidence that defendant believed he was shooting at a group of rival gang
members, but no evidence he was targeting any particular individual when he fired at the
group. The bullet hit one officer in the hand, nearly severing his finger, but killed no one.
The jury returned special findings that defendant knew or reasonably should have known
that the victims were peace officers, and convicted defendant of, among other crimes,
seven counts of premeditated attempted murder of a peace officer and one count of
premeditated attempted murder (the civilian victim).
The Court of Appeal reasoned that the jury could find on this evidence that ―the
officers‘ proximity to each other was such that in intending to kill any of the officers
defendant‘s shooting endangered the lives of all.‖ On that basis, the court affirmed
defendant‘s convictions of eight counts of attempted murder. But shooting at a person or
1
persons and thereby endangering their lives does not itself establish the requisite intent
for the crime of attempted murder. ―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.) We granted review to determine
whether, on these facts, sufficient evidence supports the multiple convictions of
attempted murder where no particular individual was being targeted, and one shot was
fired at the group, striking a single officer.
We conclude the evidence is sufficient to sustain only a single count of
premeditated attempted murder of a peace officer. ―The mental state required for
attempted murder is the intent to kill a human being, not a particular human being.‖
(People v. Stone (2009) 46 Cal.4th 131, 140 (Stone) [indiscriminate firing of a single shot
into a group of 10 to 25 youths supported one generic count of attempted murder].) Here,
defendant fired the single shot at the group intending to kill someone, but without
targeting any particular individual, and without using a means of force calculated to kill
everyone in the group. The prosecutor argued to the jury that the evidence established
defendant did not have ―a specific target in mind‖ when he fired the single shot at the
group and did not intend to ―kill everybody‖ in the group, but rather intended to ―kill
anybody, wherever that bullet hit.‖ On facts such as these, where the shooter
indiscriminately fires a single shot at a group of persons with specific intent to kill
someone, but without targeting any particular individual or individuals, he is guilty of a
single count of attempted murder. (Id. at p. 134.)
There is no doubt that defendant endangered the lives of every individual in the
group into which he fired the single shot. His assault with a firearm against each victim
in the group led to his conviction of seven counts of assault with a semiautomatic firearm
on a peace officer and one count of assault with a firearm on a civilian victim, for which
2
offenses he could properly be separately punished, subject to Penal Code section 6541
and applicable sentencing guidelines. On these facts, however, defendant can be found
guilty of only a single count of premeditated attempted murder of a peace officer.
Accordingly, the judgment of the Court of Appeal will be reversed and the matter
remanded to that court for further proceedings consistent with the views expressed
herein.
FACTS AND PROCEDURAL BACKGROUND
Defendant Rodrigo Perez appealed from the judgment entered following his
conviction by jury trial of seven counts of premeditated attempted murder of a peace
officer (§§ 664, subds. (e), (f), 187, subd. (a)), one count of premeditated attempted
murder (§§ 664, 187, subd. (a)), one count of assault with a semiautomatic firearm
(§ 245, subd. (b)), seven counts of assault with a semiautomatic firearm on a peace
officer (§ 245, subd. (d)(2)), and one count of felony vandalism (§ 594, subd. (a)). The
jury further found that defendant personally discharged a firearm causing great bodily
injury (§ 12022.53, subds. (b), (c), (d)) and inflicted great bodily injury as a result of a
firearm being discharged from a motor vehicle (§ 12022.5), and that all the offenses were
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant
was sentenced on one count of premeditated attempted murder (pertaining to injured
peace officer Rodolfo Fuentes) to 15 years to life, plus an enhancement of 25 years to life
for personal use of a firearm causing great bodily injury. Sentences on the remaining
attempted murder convictions were imposed to run concurrently, and sentences on the
convictions of assault with a semiautomatic firearm on a peace officer, as well as all
remaining firearm use enhancements, were imposed but stayed pursuant to section 654,
for an aggregate prison term of 40 years to life.
On July 1, 2005, Los Angeles police officers who were sitting in an unmarked car
1
All further undesignated statutory references are to the Penal Code.
3
across from Christopher Dena Elementary School on East Olympic Boulevard and South
Grande Vista Avenue in East Los Angeles saw a car stop in front of the school.
Defendant exited from the front passenger seat and, using a can of spray paint, sprayed
graffiti that identified the Eighth Street gang on two walls. Defendant then got back into
the car, which sped off. A gang expert testified that defendant is a member of the Eighth
Street criminal street gang, which is a rival of the Varrio Nueva Estrada (VNE) gang.
The Eighth Street gang claims territory bordered on one side by South Grande Vista
Avenue; VNE claims the territory on the other side of the street.
On the afternoon of the following day, July 2, 2005, defendant, his girlfriend,
Vanessa Espinoza, and Espinoza‘s cousin, Lissette Guerrero, attended a barbeque in
Elysian Park. Guerrero testified that the three left the barbeque after dark. Defendant
dropped Guerrero and Espinoza off at defendant‘s house and drove away. Espinoza
testified (under a grant of immunity) that defendant woke her up around 3:00 a.m. the
next morning (July 3). Defendant appeared intoxicated and told Espinoza he thought he
had shot a cop.
Meanwhile, about 1:30 a.m. on July 3, 2005, officers responded to a report of a
carjacking. The car that had been stolen was in an apartment building parking lot
abutting the VNE side of Grande Vista Avenue. Officers arrived at the scene and
detained some of the carjacking suspects. The carjacking victims were brought to the
scene and made positive in-field identifications of the suspects and certain property found
in the stolen car.
At one point, eight uniformed officers and one of the carjacking victims, as well as
three marked police cars, were in the parking lot. A fourth marked police car was at a
nearby corner. One of the officers noticed a car with two people inside turning from East
Olympic onto South Grande Vista, about 60 feet away, and driving approximately 10 to
15 miles per hour. A shot was fired from the passenger side window. The shot hit the
middle finger of Officer Rodolfo Fuentes, who was standing next to and talking to one of
4
the carjacking victims. Officer Fuentes dropped down (as did the other officers), pulling
the carjacking victim down with him. The car, which appeared to be occupied by two
Hispanic males, sped off northbound on Grande Vista.
The parking lot where the officers were standing was illuminated by overhanging
lights. There were also some trees between the lot and Grande Vista Avenue. The
lighting conditions were described by one officer as ―good enough where you can see.‖
Officer Monahan, who was standing alone approximately 20 to 30 feet from the group of
eight other officers, described the lighting as ―very dim‖ and ―very dark.‖ When the shot
was fired, several officers were standing in close proximity to one carjacking victim and
the stolen car. As described in the testimony of the various officers, the carjack victim
was standing next to Officer Fuentes; Officer Trujillo was two feet from Fuentes; Officer
Meneses was about three feet away; Officer Davis was four to eight feet away; Officer
Aguilera was approximately five feet away; Officer Villaneda was 10 to 15 feet away
from Officer Fuentes; and Officer Ortega was standing near the group of officers while
taking photographs of the victim‘s car.2
The bullet that hit Officer Fuentes almost severed his middle finger, requiring
surgery and several days of hospitalization. Investigators established that the trajectory
of the bullet continued through a metal security door and the wooden front door of a unit
in the nearby apartment building, ultimately striking a kitchen cabinet and bouncing into
the bathroom of the unit. The recovered bullet was found to be consistent with a .40-
caliber (or a 10-millimeter) semiautomatic handgun, possibly manufactured by Glock.
The vehicle used in the shooting was eventually identified as being registered to
defendant‘s girlfriend, Espinoza.
2
Officer Monahan was standing alone, approximately 20 to 30 feet from the group
of seven officers and the carjacking victim. Defendant was acquitted of the attempted
murder and assault counts pertaining to Officer Monahan.
5
Jose Morales, who testified in the hope of receiving leniency following a
nonrelated conspiracy plea, stated he had grown up with defendant. Defendant told
Morales that on the night in question he had been drinking with friends and decided to
pass by the VNE‘s territory. When defendant got to a stop sign, he saw some men with
bald heads who he thought were VNE gang members. (One officer testified that, at the
time of the incident, his head was ―shaved.‖ Another officer described his hair as ―close
shaved.‖) Defendant told Morales that ―he shot and when they ducked that is when he
noticed it was police officers, because [of] the flashing . . . from their badges, so he
stepped on the accelerator of his car to leave.‖ The gun defendant used was a ―Glock‖
belonging to ―Gizmo‖ (Paul Leyva).
Leyva testified (under a grant of immunity) that he owned a ―40 Glock‖ handgun.
Leyva knew defendant as ―Creeper,‖ and both belonged to the Eighth Street gang. Two
days before the shooting, when defendant and Leyva were completing a drug transaction,
defendant removed Leyva‘s gun from his waistband, commenting that it was a nice
weapon. When Leyva asked for it back, defendant responded, ―[L]et me hold on to it.
Let me use it.‖ Leyva agreed, stating he would come back for the gun in two days. Two
days later, when Leyva went to retrieve the gun, defendant told him that he was ―kind of
intoxicated‖ the night before, had fired a shot ―in VNE territory,‖ and then ―just sped off
home.‖
The prosecution‘s gang expert, Officer Joe Vasquez, testified that the Eighth
Street gang and the VNE gang were rivals, and that Grande Vista Avenue separates their
respective territories. The apartment parking lot where the shooting took place is in VNE
territory. The Eighth Street gang commits crimes such as murders, attempted murders,
robberies, narcotics sales, drive-by shootings, assaults with deadly weapons, sexual
assaults, and carjackings. Officer Vasquez was of the opinion that this shooting had been
committed in association with, and for the benefit of, the Eighth Street gang.
6
Testifying in his own behalf, defendant admitted he had in the past been a member
of the Eighth Street gang, but claimed his gang activities ceased in 2004. Defendant
denied spray painting Eighth Street gang graffiti on the nearby elementary school walls
two days before the shooting. He claimed further that on the night of the shooting he
drove to an apartment complex to meet a friend. The two smoked marijuana and drank
beer. As defendant was driving home, another friend asked for a ride. Defendant drove
the friend down Olympic Boulevard, heading toward the Interstate 5 freeway. Defendant
turned on Grande Vista Avenue when his friend said, ―Who‘s them fools right there,
fool?‖ Defendant said he did not know who they were, at which point he heard a loud
pop and saw his friend holding a gun. The friend told defendant to ―step on it, fool,‖ so
defendant sped off onto the freeway. The next morning, defendant first heard on the
news that a police officer had been shot. He further claimed his conversations with
Morales and Leyva did not include an admission that he had fired a gun.
On appeal, defendant asserted that because he fired a single shot, which hit Officer
Fuentes, only one conviction of premeditated attempted murder of a peace officer is
sustainable on the People‘s evidence. A majority of the Court of Appeal disagreed,
explaining its rationale for affirming the eight attempted murder convictions as follows:
―Here, defendant fired at a group of people from a distance of 60 feet. The jury, which
heard testimony and viewed exhibits regarding the officers‘ relative locations, was in a
position to determine whether the officers‘ proximity to each other was such that in
intending to kill any of the officers defendant‘s shooting endangered the lives of all.
Indeed, in making these determinations, the jury acquitted defendant of the count
involving the officer who was farthest from Fuentes. Accordingly, defendant‘s multiple
convictions for attempted murder must be affirmed.‖
One justice dissented below, observing that defendant had fired a single bullet
from a slow-moving vehicle at a group of eight people who were standing less than 15
feet from one another. The bullet hit and wounded Officer Fuentes but killed no one.
7
Nor was there evidence that defendant was targeting any particular individual in the
group when he fired the single shot. Disagreeing with the majority‘s conclusion that all
eight counts of premeditated attempted murder were supported by substantial evidence
because defendant‘s single shot had ―endangered the lives‖ of everyone in the group, the
dissenting Justice observed, ―Apart from the firing of that one shot, the record contains
no evidence that Perez intended to kill anyone,‖ and reasoned, ―A single bullet fired at a
moderately dispersed crowd from a moving car 60 feet away cannot support a reasonable
inference that the shooter intended to kill eight people or that the shooter had the apparent
ability to kill all eight people with that one shot.‖
We granted review, limited to the issue whether sufficient evidence supports
defendant‘s convictions of eight counts of premeditated attempted murder based on his
firing of a single shot at the group, which struck Officer Fuentes.
DISCUSSION
Defendant contends the evidence in this case is insufficient to support his
conviction of seven of the eight counts of premeditated attempted murder. ―The proper
test for determining a claim of insufficiency of evidence in a criminal case is whether, on
the entire record, a rational trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most
favorable to the People and must presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citation.]‖ (People v.
Jones (1990) 51 Cal.3d 294, 314.)
― ‗The mental state required for attempted murder has long differed from that
required for murder itself. Murder does not require the intent to kill. Implied malice—a
conscious disregard for life—suffices. (People v. Lasko (2000) 23 Cal.4th 101, 107.)‘
(People v. Bland (2002) 28 Cal.4th 313, 327 (Bland).) In contrast, ‗[a]ttempted murder
requires the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.‘ (People v. Lee [supra,] 31 Cal.4th 613, 623;
8
see People v. Swain (1996) 12 Cal.4th 593, 604-605.)‖ (People v. Smith (2005) 37
Cal.4th 733, 739 (Smith).)3
Thus, in order for defendant to be convicted of the attempted murder of each of the
seven officers and the civilian in the group into which he fired the single shot, the
prosecution had to prove he acted with the specific intent to kill each victim. (Smith,
supra, 37 Cal.4th at p. 739; Bland, supra, 28 Cal.4th at p. 331.) ― ‗[G]uilt of attempted
murder must be judged separately as to each alleged victim.‘ ‖ (Stone, supra, 46 Cal.4th
at p. 141, quoting Bland, at p. 331.) ―[T]his is true whether the alleged victim was
particularly targeted or randomly chosen.‖ (Stone, at p. 141.)
In Stone, supra, 46 Cal.4th 131, we considered the question whether a shooter who
fires a single shot into a group of people, intending to kill one of the group, but not
knowing or caring which one, can be convicted of a single count of attempted murder.
(Id. at p. 134.) We answered the inquiry affirmatively, explaining that, ―The mental state
required for attempted murder is the intent to kill a human being, not a particular human
being.‖ (Ibid.)
With regard to whether the evidence in this case is sufficient to establish that
defendant acted with specific intent to kill someone in the group he shot at, past decisions
have recognized that ― ‗[t]he 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 . . . .‖ [Citation.]‘ (People v.
Chinchilla (1997) 52 Cal.App.4th 683, 690 (Chinchilla); see also People v. Villegas
(2001) 92 Cal.App.4th 1217, 1224-1225.)‖ (Smith, supra, 37 Cal.4th at p. 741.)
Consistent with these principles, a rational trier of fact could find that defendant‘s act of
firing a single bullet at a group of eight persons from a distance of 60 feet established that
3
It is undisputed that defendant‘s act of firing a single shot into the group
constituted the ―ineffectual act‖ required for attempted murder. (People v. Lee, supra, 31
Cal.4th at p. 623.)
9
he acted with intent to kill someone in the group he fired upon. ―[A] person who intends
to kill can be guilty of attempted murder even if the person has no specific target in mind.
An indiscriminate would-be killer is just as culpable as one who targets a specific
person.‖ (Stone, supra, 46 Cal.4th at p. 140.) Indeed, defendant has acknowledged that
―the record supports the conclusion that [he] intended to kill whoever in the crowd was
struck by the bullet.‖ Accordingly, on these facts, the evidence is sufficient to support
defendant‘s conviction of one count of premeditated attempted murder of a peace officer.
The evidence, however, is insufficient to sustain defendant‘s convictions of the
remaining seven counts of attempted murder. In this case there is no evidence that
defendant knew or specifically targeted any particular individual or individuals in the
group of officers he fired upon.4 Nor is there evidence that he specifically intended to
kill two or more persons with the single shot. Finally, there is no evidence defendant
specifically intended to kill two or more persons in the group5 but was only thwarted
from firing off the required additional shots by circumstances beyond his control.6
4
The People concede that ―[b]ased on the evidence in this case, a reasonable jury
would infer that [defendant] did not have a specific target when he fired into the group of
officers from a distance of 60 feet.‖
5
The People have also conceded that ―[defendant] did not have the apparent ability
to kill all eight of the people with a single shot,‖ but argue ―he did have the apparent
ability to continue shooting until he did kill them all.‖ From that they argue that ―a
rational jury could have considered that the bullet nearly severed Officer Fuentes‘ finger,
and that it then traveled on and struck a metal screen door, and a wooden cabinet, before
bouncing to a rest. A rational jury could have thus found that those strikes supported at
least three attempted murder convictions.‖
The People‘s argument that each happenstance change in the direction of the
bullet‘s trajectory could somehow support additional separate counts of attempted murder
misses the mark. Whether defendant attempted to murder more than one individual in the
group he fired upon turns on whether the evidence establishes that he acted with specific
intent to kill that additional person or persons. The record, however, is devoid of
evidence that after firing off the single shot, defendant intended to continue shooting until
he killed everyone in the group.
6
An example of such circumstances might be where a shooter announces to
10
Without more, this record will not support conviction of eight counts of premeditated
attempted murder.
The People nevertheless argue that ―the presence of seven additional persons
surrounding Officer Fuentes combined with [defendant‘s] intent to shoot any one of them
fulfills the established elements of the crime of attempted murder as to each of those
persons.‖ Echoing the rationale of the majority of the Court of Appeal in affirming the
multiple convictions of attempted murder, i.e., that defendant‘s shooting ―endangered the
lives of all‖ in the group, the People argue that ―[i]t was for the jury to determine whether
these individuals were ‗close enough‘ to be counted as members of the crowd that
[defendant] targeted. Additionally, it was for the jury to determine whether an
approximate distance of 60 feet from the shooter to the crowd was ‗close range‘ and
endangered any of them.‖ (Italics added.) In support, the People cite Bland, supra, 28
Cal.4th 313, and Smith, supra, 37 Cal.4th 733. But neither Bland nor Smith stands for the
proposition that to the extent shooting a single bullet at a group of persons endangers
them all, the shooter may be found guilty of the attempted murder of every individual in
the group on that basis alone. Nor are the facts of either Bland or Smith apposite here.
In Bland, supra, 28 Cal.4th 313, the defendant fired numerous rounds into a car at
close range, killing one occupant (the apparent target) and injuring the other two. We
considered the facts underlying defendant‘s convictions and endorsed a ―kill zone‖ theory
in upholding his convictions of one count of murder and two counts of attempted murder.
(Id. at pp. 318, 329-331.)
Bland recognized that 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.
(Bland, supra, 28 Cal.4th at pp. 326-331.) Nor does our decision in Bland suggest that
witnesses that he intends to murder everyone in a group of rival gang members standing
on a corner, then shoots at the group but is thwarted when the gun jams after the first
shot.
11
single-bullet cases involving more than one potential attempted murder victim must be
analyzed under a kill zone rationale. ―Bland simply recognizes that a shooter may be
convicted of multiple counts of attempted murder on a ‗kill zone‘ theory where the
evidence establishes that the shooter used 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. Under such circumstances, a rational jury could
conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted
victim, but also all others he knew were in the zone of fatal harm. (Bland, supra, 28
Cal.4th at pp. 329-330.)‖ (Smith, supra, 37 Cal.4th at pp. 745-746.) Bland in turn cited
the decision of the Maryland Court of Appeals in Ford v. State (1992) 330 Md. 682 [625
A.2d 984], which gave several examples of facts that might support a ―kill zone‖ theory
of attempted murder: the placing of a bomb in an airliner when the desire is to kill a
particular person on board, the firing of an automatic weapon at a group of people on the
street motivated by the desire to kill one particular person in the group, or the use of an
explosive device devastating enough to kill everyone in the group. (Bland, supra, 28
Cal.4th at pp. 329-330; see Ford v. State, supra, 625 A.2d at pp. 1000-1001.)
The facts of this case do not establish that defendant created a ―kill zone‖ by firing
a single shot from a moving car at a distance of 60 feet at the group of eight individuals,
notwithstanding that they were all standing in relatively close proximity to one another.
Bland‘s kill zone theory of multiple attempted murder is necessarily defined by the nature
and scope of the attack. The firing of a single bullet under these circumstances is not the
equivalent of using an explosive device with intent to kill everyone in the area of the
blast, or spraying a crowd with automatic weapon fire, a means likewise calculated to kill
everyone fired upon. The indiscriminate firing of a single shot at a group of persons,
without more, does not amount to an attempted murder of everyone in the group. The
holding in Bland is not controlling on these facts.
12
This court‘s decision in Smith, supra, 37 Cal.4th 733, is likewise distinguishable
from this case. In Smith the defendant was standing a few feet behind a car that was
pulling away from the curb when he fired a single bullet through the rear windshield,
hitting the driver‘s headrest and barely missing both the driver (defendant‘s former
girlfriend) and her three-month-old son, who was ―secured in a rear-facing infant car seat
in the backseat‖ directly behind her. (Id. at pp. 736-737.) Applying the deferential
sufficiency of evidence standard, we affirmed the jury‘s verdicts convicting the defendant
of two counts of attempted murder. We focused first on the fact that the infant was
seated directly behind the mother, with both victims (the mother and the infant) plainly
―in [the defendant‘s] direct line of fire.‖ (Id. at p. 745.) We concluded the presence of
both victims in the shooter‘s direct line of fire, one behind the other, gave him the
apparent ability to kill them both with one shot. (See also Chinchilla, supra, 52
Cal.App.4th at pp. 685, 690 [single bullet fired at two police officers who were crouched,
one behind the other, directly in shooter‘s line of fire and visible to him, supported two
counts of attempted murder].)
We went on in Smith to explain why the evidence supported the jury‘s conclusion
that the defendant had acted with specific intent to kill both the mother and the infant.
We observed that ―evidence that defendant purposefully discharged a lethal firearm at the
victims, both of whom were seated in the vehicle, one behind the other, with each directly
in his line of fire, can support an inference that he acted with intent to kill both.
[Citations.]‖ (Smith, supra, 37 Cal.4th at p. 743.) We explained, ―The defense below
offered nothing to undercut the force of the inference, drawn by the jury on the People‘s
evidence, that defendant acted with intent to kill both victims when he fired off a single
round at them from close range, each of whom he knew was directly in his line of fire.
Defendant testified he was not the shooter, the implication being that some unidentified
shooter must have fired the shot or shots at the car (defendant testified he heard multiple
gun shots). The jury disbelieved him. His defense at trial thus furnishes no support for
13
his claim on appeal that the People‘s evidence was insufficient to establish his intent to
kill the baby.‖ (Ibid.) Last, we observed that ―even if defendant‘s act of shooting at the
baby was done ‗without advance consideration and only to eliminate a momentary
obstacle or annoyance,‘ the jury could still infer, from the totality of the circumstances,
that he acted with express malice toward that victim. (People v. Arias [(1996)] 13
Cal.4th [92,] 162.)‖ (Smith, supra, 37 Cal.4th at pp. 743-744.)7
Here, in contrast to the facts of Smith, supra, 37 Cal.4th 733, and Chinchilla,
supra, 52 Cal.App.4th 683, the evidence is insufficient to establish that defendant acted
with the intent to kill two or more individuals by firing the single shot at the group of
seven officers and a civilian.
Defendant‘s act of endangering the lives of each individual in the group at which
he fired the shot will not go unpunished. He was properly convicted of seven counts of
assault with a semiautomatic firearm on a peace officer and one count of assault with a
firearm on a civilian victim, which convictions were affirmed on appeal, and for which
offenses he may be separately punished, subject to the sentencing court‘s discretion and
applicable sentencing guidelines. On these facts, however, we conclude the evidence is
sufficient to support but a single count of premeditated attempted murder of a peace
officer. (See Stone, supra, 46 Cal.4th at p. 140.)8
7
―Intent to unlawfully kill and express malice are, in essence, ‗one and the same.‘
(People v. Saille (1991) 54 Cal.3d 1103, 1114.)‖ (Smith, supra, 37 Cal.4th at p. 739.)
8
Stone explained that in an attempted murder prosecution, where the defendant
indiscriminately fires a single shot at a group of two or more persons, ―the information
does not necessarily have to name a specific victim. Penal Code section 952 states it is
sufficient if the charge ‗contains in substance, a statement that the accused has committed
some public offense therein specified,‘ which ‗may be in . . . any words sufficient to give
the accused notice of the offense of which he is accused.‘ (See also Pen. Code, § 951.)
A defendant‘s right to be informed of the charges ‗is satisfied when the accused is
advised of the charges against him so that he has a reasonable opportunity to prepare and
present a defense and is not taken by surprise by the evidence offered at trial.‘ (People v.
Ramirez (2003) 109 Cal.App.4th 992, 999.) If the defendant is accused of attempted
murder of someone, although not necessarily a specific person, it would be sufficient to
14
CONCLUSION
The judgment of the Court of Appeal is reversed for the purpose of remanding to
that court with directions to conform the judgment to reflect defendant‘s conviction of a
single count of premeditated attempted murder of a peace officer, and for further
proceedings consistent with the views expressed herein. In all other respects the
judgment is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
allege enough facts to give notice of the incident referred to and that the defendant is
charged with attempted murder. For example, in [Stone], it would have been sufficient to
allege that defendant committed attempted murder in that on or about October 21, 2005,
he attempted to murder a member of a group of persons gathered together in a parking lot
in Lemoore, California. Although other ways to charge a case like this no doubt exist, a
charge like this example would provide adequate notice of the offense of which
defendant was accused.‖ (Stone, supra, 46 Cal.4th at pp. 141-142.)
15
CONCURRING OPINION BY WERDEGAR, J.
I concur in the judgment and in the majority‘s conclusion that defendant‘s single
discharge of a handgun was insufficient to support more than one conviction for
attempted murder. I write separately to note my disagreement with the majority‘s attempt
to distinguish People v. Smith (2005) 37 Cal.4th 733 (Smith), in which I dissented. In my
view, Smith does not meaningfully differ from the present case, and the majority‘s
attempt to find a distinction results in an unsupportable de facto rule that a single gunshot
may of itself give rise to multiple attempted murder convictions provided the alleged
victims were all ― ‗in [the defendant‘s] direct line of fire.‘ ‖ (Maj. opn., ante, at p. 13.)
Taken together, today‘s decision and Smith allow multiple convictions for victims
positioned ―in the line of fire,‖ whether or not any evidence shows the defendant intended
his single shot to strike and kill all the victims or even believed it could, and whether or
not in the circumstances a single round from the weapon used had any realistic potential
to do so. The root of this novel thinking is in Smith, which should be overruled rather
than distinguished.
A conviction for attempted murder requires both the intent to kill another person
and a direct but ineffectual act toward doing so. (People v. Lee (2003) 31 Cal.4th 613,
623.) When the evidence shows a single shot fired in the direction of a group of people,
so that the bullet could, in the ordinary course of events, have struck and killed any one
of them (but only one), the jury can rationally find the defendant committed a direct act
toward killing one person. (See People v. Welch (1972) 8 Cal.3d 106, 118 [to constitute
1
an attempt, an act must be such ― ‗ ―as would ordinarily result in the crime‖ ‘ ‖ if not for
an interruption or other failure preventing completion].) Where, as in Smith, the evidence
shows as well a motive to kill one identifiable member of a group (or pair), an inference
of intent to kill that particular person arises, and a conviction for attempted murder of that
person is proper. (See Smith, supra, 37 Cal.4th at pp. 752-753 (dis. opn. of Werdegar,
J.).) And where, as here, the evidence shows an undifferentiated but potentially lethal
hostility to all members of the group, an inference of an intent to kill any one person in
the group arises, and a single count of attempted murder charged in that manner is proper.
(Maj. opn., ante, at pp. 14-15; People v. Stone (2009) 46 Cal.4th 131, 140-142.) But in
none of the described situations does evidence of a single gunshot, without more,
establish either a direct act toward the killing of more than one person or the specific
intent to kill multiple victims.
Of course, cases occur where the nature and scope of the attack show an intent to
kill everyone within a particular area or group, and the attack constitutes a direct act
toward that goal. These are the so-called ―kill zone‖ cases. (See People v. Bland (2002)
28 Cal.4th 313, 329-331; see also People v. Stone, supra, 46 Cal.4th at p. 140 [the kill
zone theory is not dependent on the assailant‘s having an identifiable primary target].)
Examples include the use of explosive devices, the spraying of automatic or
semiautomatic weapon fire into a location or group, and the introduction of poisoned
food into a household. (See Bland, at pp. 329-331.) But Smith was not a kill zone case,
and neither is this one. (Maj. opn., ante, at p. 12; Smith, supra, 37 Cal.4th at pp. 745-
746.)
So too, a single discharge of a firearm might, in some circumstances, support
findings the defendant intended to kill multiple victims and committed a direct act toward
doing so. If the defendant‘s marksmanship and his choice of weapon and ammunition
were such that a single shot would ordinarily kill two or more victims, and if the
defendant were aware of that probability, both the actus reus and mens rea of attempted
2
murder would arguably be satisfied. But in Smith, as here, the evidence showed neither
that the defendant‘s single gunshot could, in the ordinary course of events, be expected to
strike and kill more than one victim, nor that Smith intended such an exceptional result.
It will be a rare case in which the People can prove an assailant intended to shoot and kill
person B by shooting through and killing person A, and no such proof was offered in
Smith, any more than it was here.
Despite the lack of evidence that the defendant in Smith was capable, and knew
himself to be capable, of killing both victims with a single shot, the present majority
characterizes the Smith facts—unlike the facts here—as sufficient to support two
convictions of attempted murder because both alleged victims, a mother and her infant
child, were ― ‗in [the defendant‘s] direct line of fire.‘ ‖ (Maj. opn., ante, at p. 13, quoting
Smith, supra, 37 Cal.4th at p. 745.) As my dissenting opinion in Smith observed, the
evidence actually was to the contrary: the baby, who was in an infant car seat behind his
mother, was positioned well below the line of Smith‘s apparent aim at the mother‘s head.
(See Smith, at p. 757, fn. 3 (dis. opn. of Werdegar, J).) But even evidence the victims
were positioned so that a single bullet could physically have struck and killed them both
would not, by itself, support inferences that the defendant‘s single shot was intended to,
and in the ordinary course of events was expected to, have that result. Without such
inferences in Smith, neither the mens rea nor the actus reus for two counts of attempted
murder was proven.
My purpose is not merely to reopen the debate on Smith, but to point out the
consequences of perpetuating that decision‘s error in the present case. Because the
majority‘s only factual distinction between the two cases is the positioning of the
victims—assertedly in the ― ‗line of fire‘ ‖ in Smith, but apparently not so here (maj. opn.,
ante, at pp. 13-14)—prosecutors in future attempted murder cases can be expected to
argue that multiple victims were positioned so that a single gunshot could have hit them
all, even though evidence may be entirely lacking that the defendant‘s gunshot was
3
objectively likely, or subjectively expected, to hit more than one person. Appellate
courts, in turn, will use the same criterion in deciding whether the evidence was
sufficient for multiple convictions. The number of convictions arising from a single
shooting will thus come to depend not on whether the defendant was proven to have
intended to shoot and kill more than one person and to have committed an act that would
ordinarily have had that result if not for bad aim or other failure, as previously required,
but on the victims‘ precise positions at the time of the shooting. The result will be
multiple convictions arbitrarily returned and upheld in cases where the evidence
established neither the mens rea nor the actus reus for more than one count of attempted
murder.
For this reason, Smith should be overruled instead of distinguished.
WERDEGAR, J.
I CONCUR:
MORENO, J.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Perez
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 8/21/08 – 2d Dist., Div. 1Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S167051Date Filed: July 29, 2010
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Judith L. Champagne
__________________________________________________________________________________
Attorneys for Appellant:
Eric R. Larson, under appointment by the Supreme Court, and David M. Thompson, under appointment by the Courtof Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka,Assistant Attorney General, Victoria B. Wilson, Larry M. Daniels and Mary Sanchez, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Eric R. Larson330 J Street, #609
San Diego, CA 92101
(619) 238-5575
Mary Sanchez
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2364
Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. The court limited review to the following issue: Were defendant's convictions for attempted murder of seven police officers and a civilian supported by sufficient evidence when only one shot was fired and only one officer was hit?
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 07/29/2010 | 50 Cal. 4th 222, 234 P.3d 557, 112 Cal. Rptr. 3d 310 | S167051 | Review - Criminal Appeal | submitted/opinion due | http://scholar.google.com/scholar_case?case=4745086593788626202&q=people... |
| 1 | The People (Plaintiff and Respondent) Represented by Mary E. Sanchez Office of the Attorney General 300 S. Spring Street, Suite 500-N Los Angeles, CA |
| 2 | Perez, Rodrigo (Defendant and Appellant) Kern Valley State Prison P.O. Box 5102 Delano, CA 93216 Represented by Eric Robert Larson Attorney at Law 330 "J" Street, Suite 609 San Diego, CA |
| Opinion Authors | |
| Opinion | Justice Marvin R. Baxter |
| Concur | Justice Kathryn M. Werdegar |
| Dockets | |
| Sep 26 2008 | Petition for review filed Rodrigo Perez, Appellant David M. Thompson, Attorney |
| Sep 26 2008 | Record requested |
| Sep 29 2008 | Received Court of Appeal record |
| Nov 19 2008 | Petition for review granted; issues limited (criminal case) The petition for review is granted. The issue to be briefed and argued is limited to the following: Were defendant's convictions for attempted murder of seven police officers and a civilian supported by sufficient evidence when only one shot was fired, which struck an officer? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Nov 20 2008 | Note: requested remaining volumes via overnight. |
| Nov 21 2008 | Received Court of Appeal record |
| Dec 8 2008 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Eric Larson is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. |
| Dec 19 2008 | Request for extension of time filed counsel for aplt. requests extension of time to February 6, 2009, to file the opening brief on the merits. |
| Dec 31 2008 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 6, 2009. |
| Feb 5 2009 | Request for extension of time filed counsel for appellant requests extension of time to March 9, 2009, to file the opening brief on the merits. |
| Feb 11 2009 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 9, 2009. No further extensions of time are contemplated. |
| Mar 9 2009 | Request for extension of time filed By appellant requesting a 7 day extension to an including March 16, 2009, to file Appellant's opening brief on the merits. |
| Mar 12 2009 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the the time to serve and file appellant's opening brief on the merits is hereby extended to March 16, 2009. Based on the representation of appellant's counsel Eric R. Larson that he will not be requesting any further extensions of time, no further extensions are contemplated. |
| Mar 19 2009 | Opening brief on the merits filed counsel for aplt. (Perez) (8.25(b)) |
| Apr 9 2009 | Counsel fee request received Atty Larson |
| Apr 16 2009 | Request for extension of time filed To May 20, 2009 to file Respondent's Answer brief on the Merits. |
| Apr 30 2009 | Compensation awarded counsel Atty Larson |
| May 18 2009 | Request for extension of time filed To June 3, 2009 to file Respondent's Answer brief on the Merits. |
| May 27 2009 | Extension of time granted On application of counsel for respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 3, 2009. Based on the representations of Mary Sanchez, counsel for respondent, that she expects to file respondent's answer brief on or before June 3, 2009, the time to file the brief is extended to and including that day. No further extensions of time are contemplated. |
| Jun 3 2009 | Answer brief on the merits filed Plaintiff and Respondent: The PeopleAttorney: Mary E. Sanchez |
| Jun 22 2009 | Reply brief filed (case fully briefed) Defendant and Appellant: Perez, RodrigoAttorney: Eric Robert Larson |
| Mar 30 2010 | Case ordered on calendar to be argued on Tuesday, May 4, 2010, at 9:00 a.m., in San Francisco |
| Apr 26 2010 | Filed: counsel for resp. (People) Notice of Intent to Cite Additional Authorities. (8.25(b)) |
| Apr 28 2010 | Letter sent to: each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument." |
| Apr 28 2010 | Stipulation filed Stipulation by counsel Eric Larson, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| Apr 30 2010 | Stipulation filed Stipulation by counsel Mary Sanchez, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 4 2010 | Cause argued and submitted |
| Jul 28 2010 | Notice of forthcoming opinion posted To be filed Thursday, July 29, 2010 @ 10 a.m. |
| Briefs | |
| Mar 19 2009 | Opening brief on the merits filed |
| Jun 3 2009 | Answer brief on the merits filed Plaintiff and Respondent: The PeopleAttorney: Mary E. Sanchez |
| Jun 22 2009 | Reply brief filed (case fully briefed) Defendant and Appellant: Perez, RodrigoAttorney: Eric Robert Larson |
| Brief Downloads | |
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| Nov 19, 2010 Annotated by lfong | FACTS Defendant Rodrigo Perez is a member of the Eighth Street gang in Los Angeles. The Eight Street gang claims territory bordered by the south side of Grand Vista Avenue. Its rival gang, the Varrio Nueva Estrada (VNE) gang claims the north side of the street. On July 3, 2005, seven peace officers were investigating a carjacking on the VNE side of Grand Vista Avenue. The seven officers were questioning the civilian carjacking victim when Rodrigo Perez, drove by and fired a single bullet from within the car while he was sixty feet away. The bullet hit an officer’s hand and nearly severed his finger. PROCEDURAL POSTURE After a jury trial, defendant was convicted of seven counts of premeditated attempted murder of the peace officer, one count of premeditated attempted murder, one count of assault with a semiautomatic firearm, seven counts of assault with a semiautomatic firearm on a peace officer, and one count of felony vandalism. The Court of Appeal affirmed the eight counts of attempted murder, reasoning that officer’s proximity to one another was such that intending to kill any of the officers amounted to the intent to endanger the lives of all. Defendant appeals the multiple convictions, contending that evidence is insufficient to support conviction of seven of the eight counts of premeditated attempted murder. ISSUE: HOLDING: REASONING: RULING: Reversed judgment of the Court of Appeal and remanded for further processing. CONCURRENCE (Werdegar, J., joined by George, C.J.; Kennard, J.; Chin, J.; Moreno, J.; Corrigan, J.): A defendant’s single discharge of a handgun is insufficient to support more than one conviction for attempted murder. There should be no de facto rule that a single gunshot may give rise to multiple attempted murder convictions if the alleged victims were all in the direct line of fire. Such a de facto rule would allow multiple convictions for the single firing of a gun even without evidence that the defendant intended his single shot to strike and kill all the victims, believed it could, or even whether the shot could realistically result in multiple deaths. ANALYSIS: The rule created by this case creates a fact-dependent test to determine whether a single gunshot can support multiple convictions for attempted murder. As the concurring opinion highlights, the majority's rule nearly eviscerates the intent requirement to sustain an attempted murder conviction. TAGS: direct line of fire; drive-by shooting; attempted murder; multiple convictions; attempted murder; single gunshot KEY RELATED CASES People v. Lee, 31 Cal.4th 613, 623 (2003) People v. Bland, 28 Cal.4th 313, 329-331 (2002) People v. Smith, 37 Cal.4th 733, 739 (2005) -Laura Fong |
