Filed 12/23/19 P. v. Esquivel CA2/7

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL GARY ESQUIVEL,

Defendant and Appellant.

B269545

(Los Angeles County

Super. Ct. No. SA084395)

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryn A. Solorzano, Judge. Reversed and remanded with directions.

Patricia S. Lai, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General and John Yang, Deputy Attorney General for Plaintiff and Respondent.

INTRODUCTION

Intending to kill Jose Macias, Daniel Gary Esquivel fired multiple shots into a crowd of people gathered outside a house. Esquivel wounded Macias and another person in the group, Carlos Juarez, neither of whom died as a result. At Esquivel’s trial, the court instructed the jury on the so-called kill zone theory, “under which a defendant may be convicted of the attempted murder of an individual who was not the defendant’s primary target.” (People v. Canizales (2019) 7 Cal.5th 591, 596 (Canizales)). The jury convicted Esquivel on two counts of attempted murder, one for Macias and one for Juarez.

Esquivel appealed and challenged his conviction for the attempted murder of Juarez (but not Macias), arguing the trial court erred in instructing the jury on the kill zone theory because the evidence did not support that instruction. Esquivel also argued that the trial court erred in not conducting an inquiry into possible juror misconduct and that recent legislation giving trial courts discretion to strike firearm enhancements warranted a remand for resentencing. In an unpublished decision, we remanded for resentencing, but rejected Esquivel’s other contentions and affirmed the judgment of conviction. (People v. Esquivel (Feb. 13, 2018, B269545) [nonpub. opn.].)

After the Supreme Court granted Esquivel’s petition for review (People v. Esquivel, supra, B269545 review granted Sept. 11, 2019, S247832), the Supreme Court decided Canizales, supra, 7 Cal.5th 591, which held “a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant’s attack on a primary target . . . are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm . . . around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.” (Id. at pp. 596-597.) The Supreme Court in Canizales also made clear “trial courts should reserve the kill zone theory for instances in which there is sufficient evidence from which the jury could find that the only reasonable inference is that the defendant intended to kill (not merely to endanger or harm) everyone in the zone of fatal harm.” (Id. at p. 597.) Having decided Canizales, the Supreme Court transferred this case to us with directions to vacate our earlier decision and reconsider the cause in light of Canizales.

We now vacate our previous decision, as directed by the Supreme Court, and in light of Canizales agree with Esquivel the trial court prejudicially erred in instructing on the kill zone theory. As previously, we also conclude that the trial court did not err in declining to inquire into possible juror misconduct. Therefore, we affirm Esquivel’s conviction for the attempted murder of Macias, but reverse Esquivel’s conviction for the attempted murder of Juarez and remand for a new trial on that charge. We also remand for the trial court to exercise its discretion whether to strike the firearm enhancements.

FACTUAL AND PROCEDURAL HISTORY

A. Esquivel Shoots Macias and Juarez

One afternoon in June 2013 a group of 20 to 30 people gathered outside a Los Angeles home to remember a friend who had recently died. People came and went from the gathering throughout the afternoon. They stood in the front yard, in the driveway, and on the sidewalk near an impromptu memorial of candles, flowers, and empty bottles. Macias and his girlfriend, Arlene Velasquez, spent several hours at the gathering, as did Juarez.

At 4:30 p.m. Los Angeles Police Department officers responded to a call stating someone had fired shots at the scene of the gathering, hitting Macias multiple times and Juarez once. Officer Helene Noriega-Godoy and her partner were the first officers to arrive. Velasquez told Officer Noriega-Godoy that her boyfriend had been shot and that she knew who shot him: Daniel Esquivel, also known as Dan-Dan, a member of the Culver City Boys criminal street gang. Velasquez said Esquivel had arrived at the house in a silver or black four-door Infiniti, got out of the car, pointed a handgun “in the direction of” Macias, fired multiple rounds, and got back in the car and drove away.

When Officer Thomas Harrison arrived at the scene, he heard Velasquez calling out for an ambulance and shouting, “I don’t give a fuck if I’m a snitch. Dan-Dan fucking shot my boyfriend.” Later, at the hospital, Velasquez told Officer Harrison that Esquivel pulled up in his car, stepped out, said, “Bitch, I told you I was going to kill you,” and fired several shots at Macias before getting back in his car and leaving. Velasquez said she heard six or seven shots. In a recorded interview with another officer at the hospital, Velasquez again identified Esquivel as the shooter and said he and Macias had been enemies since high school. Officers also interviewed Macias at the hospital, and after initially refusing to identify the person who shot him, he eventually identified the shooter as “Dan-Dan” and identified Esquivel in a six-pack photographic lineup.

A police detective found 12 nine-millimeter shell casings at the scene, indicating at least 12 shots were fired. A surveillance video from a nearby store showed a light-colored four-door car stop in the street in front of the house for 20 to 25 seconds, then drive away while people fled from the area “as if some[thing] happened.” The police determined that a 2006 Infiniti was registered to Esquivel and his girlfriend.

B. The Jury Convicts Esquivel on Two Counts of Attempted Murder

The People charged Esquivel with attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) of Macias (count one) and Juarez (count two). On both counts the People alleged Esquivel personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (id., subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury (id., subd. (d)). The People also alleged Esquivel committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1).

At trial Esquivel presented alibi witnesses who testified that at the time of the shooting Esquivel was at an event at a baseball park. Macias testified that he did not see who shot him and that he “just heard gunshots” and saw and heard “people running left and right.” When he turned toward the sound of the shots, Velasquez, who had been standing “right next to” him, “got right in front of” him until he “moved her to the side” and “just started running.” Eventually Macias realized he was hit “numerous times,” including in the hand, hip, left leg, and left ankle. Velasquez testified that she did not see the shooter either, that she and Macias were standing in the apron of the driveway when the shooting began, and that she first became aware of it because people around her began screaming and running away. Juarez testified that he, too, never saw the shooter and that when he first heard shots, which came from the direction of the street, he was on the sidewalk in front of the house, crouched behind a bush, smoking a cigarette.

Los Angeles Police Officer Pompello Calderon testified as a gang expert regarding the criminal conduct of gang members, their practice of instilling fear in a community, and their efforts to earn respect. Officer Calderon opined that both Esquivel and Macias were members of the Culver City Boys at the time of the shooting.

At the conclusion of testimony, the trial court instructed the jury on attempted murder pursuant to CALCRIM No. 600:

“To prove that the defendant is guilty of attempted murder, the People must prove that:

“1. The defendant took at least one direct but ineffective step toward killing another person;

“AND

“2. The defendant intended to kill that person. [¶] . . . [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of Carlos Juarez, the People must prove that the defendant not only intended to kill Jose Macias but also either intended to kill Carlos Juarez, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Carlos Juarez or intended to kill Jose Macias by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Carlos Juarez.”

In closing argument the prosecutor relied on the kill zone theory to establish Esquivel’s intent to kill Juarez: “So when the defendant by his very act pulled up in the car and pointed the gun into that crowd where [Macias] was and fired 12 times—he didn’t fire one bullet to hit [Macias]. He didn’t fire two bullets. He fired 12 into that crowd. That is a clear indication that he was perfectly willing to kill anyone in that zone. That is how you get to the attempt[ed] murder, the intent issue for Carlos Juarez.”

The jury convicted Esquivel on both counts of attempted murder, found the attempted murder of Macias, but not that of Juarez, was willful, deliberate, and premeditated, and found Esquivel personally and intentionally discharged a firearm causing great bodily injury in committing both attempted murders. The trial court sentenced Esquivel to life in prison for the attempted murder of Macias, plus a consecutive term of 25 years to life for the true finding on the firearm allegation. The court sentenced Esquivel to the lower term of five years for the attempted murder of Juarez, to run concurrently with his sentence on count 1, plus a term of 25 years to life for the true finding on the firearm allegation, to run consecutively to the five-year term.

DISCUSSION

A. The Trial Court Prejudicially Erred in Instructing on the Kill Zone Theory

1. The Canizales Decision

In Canizales, supra, 7 Cal.5th 591 the two codefendants drove up to a neighborhood block party, an outdoor gathering of between 10 and 30 people, and shot five times at their primary target, a rival gang member, who escaped unharmed. The People charged the defendants with, among other crimes, attempted murder of their primary target. The People also charged the defendants with attempted murder of the primary target’s friend (and fellow gang member) who, during the block party, was in “close proximity to” the primary target and also escaped unharmed. In connection with the latter charge, the trial court instructed on the kill zone theory, which the People argued in closing. The jury convicted the defendants on both counts of attempted murder, and the court of appeal affirmed the convictions. (Id. at pp. 598-601.)

The Supreme Court reversed the conviction for the attempted murder of the primary target’s friend. (Canizales, supra, 7 Cal.5th at p. 619.) The Supreme Court 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.” (Id. at p. 607.) The Supreme Court concluded that, “[t]aken 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.” (Ibid.)

The Supreme Court explained that, “[i]n 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.” (Canizales, supra, 7 Cal.5th at p. 607.)

The Supreme Court “emphasize[d] 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.)

Applying these principles, the Supreme Court in Canizales concluded the evidence in that case did not support instructing on the kill zone theory. (Canizales, supra, 7 Cal.5th at pp. 609-612.) The Supreme Court determined “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.) Among other considerations, the Supreme Court stated that the defendants fired only five shots from at least 100 feet away and that “the attack occurred at a block party on a wide city street, not in an alleyway, cul-de-sac, or some other area or structure from which victims would have limited means of escape.” (Id. at p. 611.) The Supreme Court concluded that, absent sufficient evidence of the defendants’ intent to create a zone of fatal harm, the Court did not need to determine the scope of that zone and whether the alleged victim was within the zone. (Id. at pp. 611 612.)

2. The Evidence in This Case Did Not Support Instructing on the Kill Zone Theory, and the Trial Court’s Error in Doing So Was Prejudicial

This was not one of the “relatively few cases” (Canizales, supra, 7 Cal.5th at p. 608) appropriate for instructing on the kill zone theory. There is no dispute Macias was Esquivel’s primary target, but the circumstances of the attack did not support a reasonable inference Esquivel intended to create a zone of fatal harm around Macias—i.e., an area in which he “intended to kill everyone present” (id. at p. 607). Esquivel shot at Macias when Macias was standing in a group of people on the apron of a driveway, an area from which those people, including Macias, were able to flee when the attack began. No one else in the driveway was hit, including Velasquez, who was standing right beside and, at one point, right in front of Macias—i.e., between him and Esquivel. The only other person shot, Juarez, was not in the driveway, but on the sidewalk, some unspecified distance away from Macias. This evidence strongly suggested Esquivel was firing at one person in a crowd without regard for hitting others in the crowd, not creating an area in which he intended to kill everyone present. The evidence therefore did not “support a jury determination that the only reasonable inference from the circumstances of the offense is that” Esquivel intended to kill everyone in a zone of fatal harm. (Id. at p. 608.)

The People attempt to distinguish Canizales on the ground Esquivel fired 12 shots “from a short distance” rather than, as in Canizales, five shots from at least 100 feet away. The number of shots fired and the distance from which the shooter fires them are “relevant to the inquiry,” but they are not dispositive. (Canizales, supra, 7 Cal.5th at p. 610.) Other relevant considerations of particular importance here were the “openness of the area in which the attack occurred” (id. at p. 611), that Velasquez and others in closest proximity to the primary target were not shot (see ibid.), and that there was no evidence suggesting Juarez was in close proximity to the primary target when Juarez was shot (see id. at p. 607).

Nor was the error harmless. Where, as here, the trial court instructs on both a valid and invalid theory, we apply “the usual ‘beyond a reasonable doubt’ standard of review established in Chapman v. California (1967) 386 U.S. 18, 24, 17 L.Ed.2d 705, 87 S.Ct. 824 (Chapman)” to determine whether the error of instructing on the invalid theory was prejudicial. (People v. Aledamat (2019) 8 Cal.5th 1, 3; see Canizales, supra, 7 Cal.5th at p. 615.) Under that standard we “must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt.” (Aledamat, at p. 3.)

Erroneously instructing on the kill zone theory here was not harmless beyond a reasonable doubt. Indeed, the prosecutor relied on the theory exclusively in arguing Esquivel had the requisite intent to kill Juarez, and the People cite no other possible basis for the jury’s determination that Esquivel had that intent.

B. The Trial Court Did Not Abuse Its Discretion in Not Conducting an Inquiry into Possible Juror Misconduct

1. The Trial Court Proceedings

The jury began its deliberations on September 28, 2015, at 1:35 p.m. Later that afternoon, the jury asked to have the court reporter read back certain testimony and to view the video recordings presented at trial. The trial court excused the jury at 4:30 p.m.

Deliberations resumed the next morning, and the jury requested clarification on the kill zone instruction. Counsel agreed the appropriate response was for the court to refer the jury to CALCRIM No. 600. Later that morning, the jury submitted another question: “Several jurors have concern for safety/retaliation after the trial. What is the procedure for the jurors leaving the courthouse after the verdict is read? One of the jurors is concerned she might have been followed after leaving yesterday.”

Discussing the matter with counsel, the trial court stated: “I don’t know if it’s going to create an issue with regard to whether or not she is able to continue to deliberate and who is responsible for following her. There are a lot of questions that could be asked, or there could be no questions asked, frankly. They are not asking—that person is not asking to be relieved from their service. They haven’t indicated that they have—that they are so fearful they can’t make a decision.” The trial court continued: “I’m intending to tell them they’ll be escorted out and I am reminding them that they must make their decision based on only the evidence that they receive in the courtroom and nothing else . . . .” The following discussion occurred:

“[Counsel for Esquivel]: I would ask the court to remind them and tell them the procedural information leaving the courtroom. And I don’t have any other concession.”

“The Court: Okay. So you—at this time you are not asking to—this court to inquire any further?”

“[Counsel for Esquivel]: No.

“The Court: Okay. And that’s a double negative. It’s my fault. Are you asking this court to do—inquire any further?

“[Counsel for Esquivel]: No.”

The court responded to the jury’s question in writing: “The jurors will be escorted from the courtroom and from the building, when you are ready and if requested, by a sheriff deputy. Please note all of CALCRIM 222—particularly in this context—in reaching your verdict, you must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses. Please do not hesitate to raise this concern again. As you know, I am here to answer your questions.” Both counsel approved of the court’s written response. After the verdict, two jurors requested an escort out of the courthouse.

2. Standard of Review

“‘“‘The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.’” [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute “good cause” to doubt a juror’s ability to perform his or her duties and would justify his or her removal from the case.’” (People v. Williams (2013) 58 Cal.4th 197, 289-291 (Williams); accord, People v. Sánchez (2016) 63 Cal.4th 411, 459.)

3. The Trial Court Did Not Abuse Its Discretion

Esquivel contends the trial court erred in failing to conduct an inquiry into possible juror misconduct. “‘An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is “‘capable and willing to decide the case solely on the evidence before it.’”’” (People v. Hensley (2014) 59 Cal.4th 788, 824.)

A juror’s receipt of information about a party or the case outside the evidence presented at trial is improper and is considered juror misconduct even if the juror receives the information passively or involuntarily. (People v. Cowan (2010) 50 Cal.4th 401, 507.) The trial court has a duty to investigate when it becomes aware of the possibility a juror has committed misconduct or has been exposed to improper influences. (People v. Linton (2013) 56 Cal.4th 1146, 1213.) The court must make whatever inquiry is reasonably necessary to determine whether to discharge the juror and whether the impartiality of other jurors has been affected. (Ibid.; People v. Davis (1995) 10 Cal.4th 463, 535.) “However, ‘“not every incident involving a juror’s conduct requires or warrants further investigation.”’” (Cowan, at p. 506; see Williams, supra, 58 Cal.4th at p. 290.)

The note from the jury reported that several jurors were concerned about retaliation and their safety, asked about the procedure for leaving the courthouse after the verdict, and stated one juror thought she might have been followed. The court observed that the juror who believed she might have been followed was not asking the court to excuse her from service and did not indicate she could not serve as an impartial juror. In its response to the jury’s question, the court stated a peace officer would escort the jurors from the building after the trial if requested, referred the jury to CALCRIM No. 222, and reiterated the instruction to disregard anything the jurors perceived outside of the trial. If the jurors had any further concerns about their safety, the court invited them to raise the issue again. Apparently satisfied with the court’s response, the jurors did not raise any further safety concerns.

The trial court acted within its discretion in deciding not to conduct any further inquiry. The court responded to the jury’s inquiry about safety and reminded the jurors of their duty to disregard external influences. The court reasonably concluded that providing an escort after the end of trial satisfied the jury’s concerns and that the jury, which had already submitted several written requests and was not reluctant to raise issues with the court, had no further concerns regarding its safety. The juror who said she may have been followed did not seek to be excused. Counsel for Esquivel (twice) declined the court’s invitation to conduct a further inquiry. Given its direct and remedial response to the jury’s concerns, the court did not abuse its discretion when it chose not to conduct a formal hearing or further proceedings. (Williams, supra, 58 Cal.4th at pp. 289-291.)

C. Remand for Resentencing Is Appropriate

When the trial court sentenced Esquivel in December 2015, section 12022.53, subdivision (h), prohibited the court from striking the enhancements under that statute. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1127; People v. Palacios (2007) 41 Cal.4th 720, 726; People v. Sinclair (2008) 166 Cal.App.4th 848, 853.) The Legislature, however, has since amended section 12022.53, subdivision (h), to give the trial court discretion to strike the firearm enhancements in the interest of justice. (See Sen. Bill No. 620 (2017-2018 Reg. Sess.) § 1.) Esquivel argues, the People concede, and we agree the amendment to section 12022.53, subdivision (h), applies retroactively to defendants, like Esquivel, whose appeals are not final on the law’s effective date. (See People v. Hurlic (2018) 25 Cal.App.5th 50, 56; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080; People v. Chavez (2018) 22 Cal.App.5th 663, 712; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425; People v. Robbins (2018) 19 Cal.App.5th 660, 679.)

In addition, the record does not clearly indicate the trial court would not have stricken the firearm enhancement on count one had the court known it had discretion to strike the enhancement. The court commented the shooting was “egregious,” yet imposed the lower term of five years for the attempted murder of Juarez and allowed Esquivel to serve it concurrently with the sentence for the attempted murder of Macias. (See § 664, subd. (a) [“If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years.”]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [“[r]emand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so”]; People v. Billingsley, supra, 22 Cal.App.5th at p. 1081 [remand is appropriate where “the record does not ‘clearly indicate’ the court would not have exercised discretion to strike the firearm allegations had the court known it had that discretion”]; cf. People v. Garcia (2018) 28 Cal.App.5th 961, 973, fn. 3 [remand was appropriate under amendments to section 667, subdivision (a), where “[t]he record does not indicate that the court would not have dismissed or stricken defendant’s prior serious felony conviction for sentencing purposes, had the court had the discretion to do so at the time it originally sentenced defendant”].) Moreover, at the time the court sentenced Esquivel, the court “was not aware of the full scope of the discretion it now has under the amended statute,” and defendants “‘“are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court.”’” (Billingsley, at p. 1081.) Therefore, remand for resentencing is appropriate.

DISPOSITION

Our February 13, 2018 opinion is vacated. The conviction for the attempted murder of Juarez is reversed and remanded for a new trial on that charge. The conviction for the attempted murder of Macias is affirmed and remanded for resentencing to allow the trial court to exercise its discretion whether to strike the firearm enhancement imposed for the attempted murder of Macias. If the prosecution elects to try Esquivel for the attempted murder of Juarez, the court will have an opportunity, during those proceedings, to consider whether to exercise its discretion to strike for purposes of sentencing the firearm enhancement imposed for the attempted murder of Juarez.

SEGAL, J.

We concur:

PERLUSS, P. J.

ZELON, J.