Filed 1/17/20 P. v. Torres CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

STEPHANIE NOEL TORRES,

Defendant and Appellant.

C087086

(Super. Ct. No. 17CR002595)

A jury convicted defendant Stephanie Noel Torres of attempted first degree murder, assault with a semiautomatic firearm, possession of a firearm by a felon, and possession of ammunition by a felon. It also found true various enhancement allegations. The trial court sentenced her to an aggregate 77 years four months in prison.

Defendant now contends (1) there is insufficient evidence of attempted murder, (2) the trial court erred in instructing the jury on the kill zone theory because there was insufficient evidence defendant intended to kill everyone in a zone of fatal harm and her counsel was ineffective for not objecting to that instruction, (3) the matter should be remanded to permit the trial court to consider dismissing the 5-year prior strike enhancement pursuant to Senate Bill No. 1393, and (4) her three prior prison term enhancements must be vacated based on the retroactive application of Senate Bill No. 136.

We conclude (1) the attempted murder convictions are supported by substantial evidence, (2) the trial court did not commit prejudicial instructional error because the way the challenged instruction was given allowed the jury to convict of attempted murder only if defendant intended to kill the named victim, without resort to the kill zone theory, (3) we will remand the matter for the limited purpose of allowing the trial court to exercise its new discretion under Senate Bill No. 1393, and (4) we will modify the judgment to strike her three one-year prior prison term enhancements.

BACKGROUND

The background is limited to the circumstances pertinent to the contentions on appeal. Defendant shot and injured a man who allegedly made unwanted advances toward her teenage sister. The next day, Deputy Jarrod Valdes attempted to stop a car described in a domestic disturbance report. The car did not pull over in response to his patrol lights and siren but instead attempted to flee. The fleeing car was eventually pursued by Deputy Valdes, Deputy William Derbonne and Deputy Greg Thompson in separate vehicles. At one point, Deputy Valdes heard what he thought were gunshots, but he could not see where they were coming from because he was driving behind Deputy Derbonne at the time. The shots were fired during the initial part of the pursuit over the course of about a minute, coming in regular succession in one or two shot intervals. He said any one of the pursuing officers could have been hit by a bullet.

The pursuit ended when the fleeing car parked at an apartment complex. Defendant exited the car from the back seat. An inspection of the car revealed damage to a rear window consistent with a shot being fired through it.

Deputy Derbonne testified that during the pursuit he could see a firearm and the muzzle flashes of shots being fired. The shooter had tattoos consistent with defendant’s. Deputy Derbonne ducked and swerved to get out of the line of fire. He then noticed he was being shot at from the other side of the fleeing car. He could see the firearm because he was about 20 feet from the fleeing car with all of his lights on, and he could tell the handgun was pointed in his direction. He could tell the shots were not being fired into the air or toward the ground, he could see the shots were fired in his direction. Deputy Derbonne testified that when a handgun is aimed at you and when somebody is shooting at you, you can tell, because the flash is coming towards your direction. He said the muzzle flash was not going up in the air and the barrel of the gun was not pointed in the air. Deputy Derbonne believed there were at least six shots, possibly more. To his knowledge, no shots hit the patrol cars or any of the surrounding parked cars or buildings. During the pursuit, Derbonne maintained his position directly behind the fleeing car.

Alfredo Galvan is defendant’s cousin and testified that he drove the fleeing car. He was giving defendant and Marlen Fernandez a ride when the patrol car lights illuminated. When defendant told Galvan she would shoot the officers if Galvan stopped the car, Galvan was scared and continued to drive. He said shots originated from the right rear of the car, and defendant was the only person in the backseat as the shots continued. Eventually, defendant said she would surrender if Galvan drove to her mother’s home, which he did. Galvan admitted on cross-examination that he had originally been charged with attempted murder, but the charges were dismissed after he agreed to testify against defendant.

Officer Justin Jimenez testified that he recovered a loaded handgun in the pursuit area. Detective Eric Patterson interviewed defendant, who admitted throwing a gun from the fleeing car. Defendant said she was in the front seat with Fernandez and Galvan when the patrol lights were activated, but she crawled into the backseat. She denied firing at the police.

Deputy Valdes testified that both defendant and Fernandez have tattoos on their hands, but defendant also has tattoos on her arms. Detective Patterson testified that they did not observe bullet holes in the pursuing cars or in any of the buildings or vehicles in the pursuit area. However, Patterson said that was not unusual under the circumstances; searching for holes was like “looking for a needle in a haystack.” Authorities recovered several shell casings along the road.

In connection with the shooting of the man who allegedly made unwanted advances toward defendant’s teenage sister, the jury convicted defendant of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b) — count II), possession of a firearm by a felon (§ 29800, subd. (a) — count III), and possession of ammunition by a felon (§ 30305, subd. (a) — count IV). The jury also found true allegations that defendant, in the commission of the count II assault, personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a firearm (§ 12022.5).

Moreover, in connection with the shots fired at the pursuing police officers the next day, the jury convicted defendant on three counts of first degree attempted murder (§§ 664/187, subd. (a) — counts V-VII ), possession of a firearm by a felon (§ 29800, subd. (a) — count XI), and possession of ammunition by a felon (§ 30305, subd. (a) — count XII). The jury also found true allegations that defendant, in the commission of counts V-VII, personally and intentionally discharged a firearm (§ 12022.53, subd. (c)).

Defendant admitted, as to all counts, that she had a prior serious felony conviction (§ 667, subd. (a)(1)), three prior prison terms (§ 667.5, subd. (b)), and a prior strike conviction (§ 1170.12, subds. (a)-(d)).

The trial court sentenced defendant to an aggregate 77 years four months in prison.

DISCUSSION

I

Defendant contends the evidence was insufficient to support the convictions for the attempted murder of the three deputies. Defendant argues: “The evidence establishes at most that [defendant] fired shots with the intention of discouraging the deputies from pursuing the car in which she was traveling, but it does not show an intent to kill any of the deputies who were pursuing her vehicle.”

In reviewing a claim of insufficiency of evidence, we view the evidence in the light most favorable to the judgment and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Perez (2010) 50 Cal.4th 222, 229.) Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).)

In support of her contention that the evidence was insufficient to show she intended to kill any of the deputies, defendant focuses on two circumstances: (1) the prosecution did not present evidence “any bullet struck or even grazed any deputy or any patrol car driven by a deputy” and (2) defendant’s threat to Galvan that she would shoot a deputy was contingent on Galvan’s stopping the car but no one fired at the deputies when the car stopped and defendant was first to exit the car with her hands up. However, considering all of the evidence, as we must, we conclude there is substantial evidence to support the jury’s finding that defendant intended to kill the deputies.

Defendant expressed her intent to shoot the deputies if her cousin stopped the car. Her cousin kept driving out of fear, but the evidence shows defendant nevertheless opened fire in the direction of the pursuing deputies. Deputy Derbonne ducked and swerved to get out of the line of fire. He then noticed he was being shot at from the other side of the fleeing car. He could see the firearm because he was about 20 feet from the fleeing car with all of his lights on, and he could tell the handgun was pointed in his direction. He could tell the shots were not being fired into the air or toward the ground. Deputy Valdes was driving behind Deputy Derbonne and testified any one of the pursuing deputies could have been hit by a bullet.

That the deputies were unable to find any bullet holes in their cars does not preclude a finding that defendant intended to kill the deputies. She could certainly argue that circumstance to the jury, but the testimony of the deputies was clear that defendant was shooting in their direction. On the facts of this case, the jury was free to find that defendant failed to hit the deputies’ cars because of the movement of the car defendant was riding in, her poor aim, and the deputies’ effort to avoid her aim. Thus, the jury was not required to find defendant did not intend to kill the deputies even if she failed to hit their cars.

Likewise, the contingent nature of defendant’s threat to Galvan that she would shoot a deputy if Galvan stopped the car was another circumstance defendant could argue to the jury, but it does not overcome the substantial nature of the evidence that she expressed a willingness to shoot a deputy and actually shot at the deputies as they were pursuing the car. A jury could reasonably infer the intent to kill from the evidence in this case.

II

Defendant next contends the trial court improperly instructed the jury on the kill zone theory of attempted murder.

“[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.)

The trial court instructed the jury, consistent with the first part of CALCRIM No. 600, on the general theory of attempted murder as follows, in pertinent part: “To prove that the defendant is guilty of attempted murder, the People must prove that the defendant took at least one direct but ineffective step towards killing another person and the defendant intended to kill that person.” That instruction properly indicated that an element of attempted murder is that the defendant intended to kill the victim. (Canizales, supra, 7 Cal.5th at p. 602.)

The trial court then instructed the jury with a bracketed portion of CALCRIM No. 600 designed to instruct on the kill zone theory. But the trial court filled in the blanks for that portion of the instruction in such a way that the jury was only allowed to convict defendant for attempted murder of each deputy if defendant intended to kill that deputy, without regard to whether defendant created a zone of fatal harm. Specifically, the relevant bracketed portion of CALCRIM No. 600 provides: “In order to convict the defendant of the attempted murder of [insert name of victim based on concurrent-intent theory], the People must prove that the defendant not only intended to kill [insert name of alleged primary target] but also either intended to kill [insert name of victim based on concurrent-intent theory], or intended to kill everyone within the kill zone.” To instruct on attempted murder based on a kill zone theory as to alleged victim Deputy Derbonne, the trial court should have inserted Deputy Derbonne’s name in the first and third blanks as the alleged concurrent-intent victim and inserted someone else’s name in the second blank referring to the alleged primary target. But instead, the trial court inserted Deputy Derbonne’s name into all three blanks, as follows: “In order to convict the defendant of the attempted murder of Deputy William Derbonne, the People must show that the defendant not only intended to kill Deputy William Derbonne but also intended to kill Deputy William Derbonne or intended to kill everyone within the kill zone.” The trial court gave that same bracketed portion of the instruction in connection with the other two alleged deputy victims, inserting each deputy’s name into all three blanks, just like the trial court had done with Deputy Derbonne’s name.

The purpose of CALCRIM No. 600 is to present to the jury two options for finding intent to kill: (1) under the general theory of attempted murder (if the jury finds the defendant intended to kill the named victim), or (2) under the kill zone theory (if the jury finds the defendant intended to kill the named victim because the defendant intended to kill the primary target other than the named victim, the defendant concurrently intended to kill everyone within the zone of fatal harm, and the named victim was within the zone of fatal harm). Based on the way the trial court gave the instructions in this case, however, the jury could only convict on each count of attempted murder if it found that the named victim was the primary target, which is essentially the general theory of attempted murder. Therefore, the instruction effectively precluded the jury from relying on the kill zone theory to convict defendant of attempted murder.

Defendant argues the evidence was insufficient to give the kill zone instruction because the evidence “failed to show that [defendant] attempted to kill everyone in any specific victim’s vicinity or sought to kill everyone in a particular area without having a primary target.” Regardless of whether the evidence was sufficient to give the kill zone instruction, the instructions as given did not allow the jury to rely on the kill zone theory. Rather, the instructions as given were consistent with the general theory of attempted murder. Nevertheless, defendant argues: “Regardless of any ambiguity this Court may perceive in the instruction, there is a reasonable likelihood that the jurors interpreted the instruction to permit convictions based on the kill zone theory.” Defendant continues: “Although each instruction correctly told the jury that the People must prove that [defendant] intended to kill the named victim, the following sentence in the instruction undermined that requirement by strongly implying that mere proof that [defendant] intended to kill everyone in the kill zone would suffice for a conviction.”

We disagree that there was any such implication. Defendant focuses on the “everyone within the kill zone” language in the bracketed portion of the instructions, but ignores the “not only” language. The instructions as given only allowed the jury to find defendant guilty of attempted murder if it found that she intended to kill the named victim in that count. The jurors would have had to reject the trial court’s instructions to base their attempted murder convictions on the kill zone theory. We presume the jury followed the instructions absent evidence to the contrary. (People v. Potts (2019) 6 Cal.5th 1012, 1037.) Accordingly, defendant’s argument lacks merit.

Defendant further argues the prosecutor told the jury it could rely on a finding of a zone of danger to convict defendant of attempted murder. The prosecutor said: “What was her intention when she was shooting at the police officers? She stated it: I’m going to kill them. You had three police cars following her and you’ve heard testimony that they were all in the line of fire. [¶] When you hear the jury instruction, it will explain a thing called zone of danger, or something like that, that if you’re shooting and [there are] people there and you shoot and anybody that’s potentially going to be hit by that bullet is a victim of that crime. She wanted to get away bad enough that she was willing to shoot at these police officers.”

As defendant asserts, arguments of counsel may be considered when a trial court’s instructions are ambiguous. (People v. Kelly (1992) 1 Cal.4th 495, 526-527) However, the trial court’s instructions here were not ambiguous as to the intent to kill element of attempted murder. The jury could only convict if it found defendant intended to kill the named victim. Therefore, even to the extent the prosecutor’s argument may have given the jury the wrong impression concerning intent to kill, we must presume the jury followed the trial court’s instructions. (People v. Mayfield (1993) 5 Cal.4th 142, 179.)

We therefore conclude the trial court did not commit prejudicial error in instructing the jury on attempted murder.

Defendant asserts an alternative ineffective assistance claim in the event we conclude her challenge to the kill zone instruction is forfeited based on her trial counsel’s failure to object to it at trial. Because we have addressed her challenge to the instructions on the merits, we do not decide the alternative ineffective assistance claim.

III

Defendant further argues the matter should be remanded to permit the trial court to consider dismissing the five-year prior serious felony enhancement pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) effective January 1, 2019, which amended section 667, subdivision (a) and section 1385, subdivision (b) “to give courts the discretion to dismiss or strike a prior serious felony conviction for sentencing purposes.” (People v. Garcia (2018) 28 Cal.App.5th 961, 965.) The amendments are available to all individuals whose judgments are not final as of the effective date. (Id. at p. 973.)

The People acknowledge the retroactivity of Senate Bill No. 1393, but nevertheless argue remand is unnecessary because they claim the trial court’s sentencing choices clearly indicated it would not have dismissed the enhancement. Specifically, the People note the trial court’s decision not to dismiss the prior strike conviction allegation and its decision to impose sentence based on the prior prison terms. We disagree that this sufficiently demonstrates what the trial court would have done if it had known about its newly enacted discretion. We will remand for the trial court to exercise its discretion.

IV

Finally, in her second supplemental brief, defendant claims her three prior prison term enhancements must be vacated based on the retroactive application of Senate Bill No. 136. The People agree.

On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill No. 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended.” (§ 667.5, subd. (b).)

We agree with the parties that Senate Bill No. 136 should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting “the role of the court is to determine the intent of the Legislature”].) Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 (Estrada) “ ‘that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ [Citations.]” (Lara, at p. 308.) “A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. (People v. Francis (1969) 71 Cal.2d 66, 75-78.)” (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)

Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b) prior prison term enhancement. The prior prison term enhancement no longer applies to defendant, who served prior prison sentences for assault with a deadly weapon, being a felon in possession of a firearm, and causing bodily injury while driving under the influence. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we conclude Estrada’s inference of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to § 12022.6, subds. (a) & (b) enhancements].) Accordingly, we will modify the judgment to strike defendant’s three one-year prior prison term enhancements.

DISPOSITION

The judgment is modified to strike defendant’s three section 667, subdivision (b) prior prison term enhancements, and the matter is remanded for the limited purpose to allow the trial court to exercise its discretion under Senate Bill No. 1393 and consider whether to dismiss the section 667, subdivision (a) enhancement. The judgment is otherwise affirmed. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

/S/

MAURO, Acting P. J.

We concur:

/S/

HOCH, J.

/S/

KRAUSE, J.