Filed 9/30/20 P. v. Meeks CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E072894

v. (Super.Ct.No. 16CR013918)

JOVAN MEEKS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed in part; reversed in part with directions.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Paige B. Hazard and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jovan Meeks shot at an apartment where Kirk Savala was

standing outside on the patio smoking a cigarette. Several other persons were standing

1 near the apartment and Kirk’s wife, Donna Savala, was inside the living room of the

apartment. Kirk was shot and killed. Donna was shot but survived.

Defendant was found guilty in count 1 of voluntary manslaughter for the death of

Kirk Savala (Pen. Code, § 192, subd. (a)).1 Defendant was convicted in counts 2 (Donna

Savala), 3 (Thomas Savala), 4 (Tyler Peace) and 5 (Eric Brewer)2 of attempted voluntary

manslaughter (§§ 664, 192, subd. (a)). The jury found true weapons use enhancements

for counts 1, 2, 3, 4, and 5 within the meaning of section 12022.5, subd. (a)). The jury

also found true the enhancement on count 2 that he personally inflicted great bodily

injury on Donna. (§12022.7, subd. (a).) Defendant was also found guilty of shooting at

an inhabited dwelling (§ 246) in count 6 and the jury found the special allegations true

that he personally used a firearm and personally used a firearm causing great bodily

injury (§ 12022.53, subds. (b) & (d).) Defendant was sentenced to a determinate term of

16 years four months, plus the indeterminate term of 25 years to life.

Defendant claims in his appellant’s opening brief that (1) insufficient evidence

was presented to support his conviction of attempted voluntary manslaughter of Donna

because he had no intent to kill her; (2) his conviction of attempted voluntary

manslaughter must be reversed because the jury was instructed with CALCRIM No. 562

on transferred intent, which the jury improperly applied to count 2; (3) prosecutorial

misconduct requires reversal of count 2; (4) ineffective assistance of counsel requires

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Eric Brewer is referred to in the record by “Erik” and “Eric.”

2 reversal of count 2; (5) cumulative errors require reversal of count 2; (6) the weapons use

enhancement imposed and stayed pursuant to section 12022.53, subdivision (b), for his

conviction of section 246 must be stricken; and (7) remand is necessary in order for the

trial court to properly exercise its discretion to strike the section 12022.53, subdivision

(d), enhancement. In a supplemental brief, defendant argues that his convictions of

attempted voluntary manslaughter in counts 3, 4 and 5 must be reversed because the jury

was improperly instructed with CALCRIM No. 562 on transferred intent, and based on

the instructional error and the arguments by the prosecutor, it cannot be said that such

erroneous instruction was harmless beyond a reasonable doubt.

FACTUAL HISTORY

A. PEOPLE’S CASE-IN-CHIEF

Donna Savala had been married to Kirk Savala for over 28 years. They had five

children and 10 grandchildren. In April 2016, she and Kirk3 lived in apartment No. 1 at

the Parkview Apartments in San Bernardino. Their son Thomas Savala lived with them

along with Donna’s daughter and some of their grandchildren. They had lived at the

apartment for three years and had good relationships with their neighbors. A stairwell

next to their apartment led to the apartments above them. Juan Hernandez lived directly

above them. Defendant lived in apartment No. 38.

3 We refer to some witnesses by their first names for clarity due to shared last names and/or to preserve their anonymity (Cal. Rules of Court, rule 8.90(b)). No disrespect is intended.

3 On the morning of April 16, 2016, around 10:00 a.m., Donna was home with Kirk

and Thomas. Her daughter and eight of her grandchildren were also in the apartment.

Tyler Peace was friends with Thomas and lived around the corner. Peace and his cousin,

Eric Brewer, came to their apartment door at around 10:00 a.m. looking for Thomas.

Thomas went outside with them. Peace, Brewer, and Thomas stood by the stairwell next

to apartment No. 1. Brewer was acting paranoid. Thomas moved down to the sidewalk

in front of the stairs while Peace and Brewer stayed in front of the stairwell. They

smoked marijuana.

After Thomas went outside, Donna sat down on the couch inside to watch

television. Kirk went outside on the patio and did not close the sliding glass door. Kirk

stood on the patio and smoked a cigarette.

Thomas observed defendant walk to his car, which was parked just to the right of

apartment No. 1. Defendant said nothing to Thomas, Peace, and Brewer and they said

nothing to defendant. Defendant walked to the driver’s side of his car, pulled out a gun

and started shooting at them. He shot toward the patio of apartment No. 1 and where

Brewer and Peace were standing near apartment No. 1.

Thomas heard a “handful” of gunshots and then they stopped. After these first

rounds of gunshots, he ran and ducked between two cars that were parked in front of

apartment No. 1. Thomas heard Kirk say, “ ‘I’m hit.’ ” Brewer and Peace went toward

the door to apartment No. 1 but Thomas’s sister did not let them in. They came back out

toward the stairs and Peace shot back at defendant several times. Defendant went to get

in his car and Thomas came out from his hiding place. Thomas yelled to defendant “you

4 shot my dad.” Defendant responded, “ ‘My bad.’ ” Defendant was still holding his gun

and pointed it at the ground. Thomas responded, “You shot my fucking dad.” Defendant

sped off in his car. Thomas ran to his dad.

Donna was sitting on the couch when she heard gunshots. They were loud and

sounded like they were right outside the apartment. Donna initially heard three to four

shots. She stood up and put her hand on the sliding glass door. She observed Kirk fall to

the ground. As he was falling, she felt something hit her on her breast.

There was a pause in the gunshots and then she heard three or four more gunshots.

Donna went to the bathroom and lifted up her shirt. She had a hole in her chest that was

bleeding. She bled onto the sink. Donna did not see defendant during or after the

shooting.

Donna went back out to the patio; Kirk was lying on the ground face up. Thomas

was kneeling down next to him. Kirk was shot in the torso and Thomas tried to stop the

bleeding. Peace and Brewer ran away.

Hernandez lived above the Savala family. On April 16, he arrived home from

work around 10:30 a.m. He observed Kirk on the patio of Kirk’s apartment. Thomas

was outside near the stairwell. Hernandez said hello to both of them. He then heard

gunshots. Neither Thomas nor Kirk were shooting at anyone. Hernandez ran back to his

car. He then ran to his apartment. He did not recall telling a police detective that he saw

the shooter.

Donna and Kirk were transported by ambulance to the hospital. The bullet had

entered Donna’s breast and exited through the middle of her chest. She had some wound

5 treatment for a few weeks after she was shot but did not require surgery. She stayed in

the hospital for a few days. Kirk died as a result of a gunshot wound to his abdomen,

which severed a major artery.

The jury was shown surveillance video from the area of the shooting. Thomas

could be seen standing on the sidewalk in a red shirt. Suddenly, he ducked down

between two cars and then could be seen talking to someone. Defendant was not visible.

A car was seen speeding away from the shooting. Peace, Brewer, and Kirk were not

visible in the surveillance video. Thomas did not see a gun in Peace’s hand until

defendant shot at them. When Thomas was interviewed by police, he never stated that

Peace had shot at defendant.

San Bernardino County Sheriff’s Detective Adam Salsberry participated in the

investigation of the shooting. Detective Salsberry spoke with Hernandez the morning of

the shooting and Hernandez indicated he saw a man start shooting toward the patio where

Kirk was standing and then drive off. The shooter was Black. The person shot three to

four times toward the patio. He then turned and shot another five to six shots.

Hernandez showed Detective Salsberry where the shooter lived.

Eight nine-millimeter caliber casings were found in the parking lot at the

apartment complex. The fence on the patio had bullet holes. The sliding glass door to

apartment No. 1 was shattered. There were bullet holes around the frame of the sliding

glass door. There was a bullet hole above apartment No. 1. A total of five nine-

millimeter bullets were found.

6 Based on the location of the nine-millimeter casings, it appeared that the shooter

was moving during the shooting. The door to defendant’s car was likely open when he

was shooting. There was a bullet hole on his car.

In addition to the nine-millimeter casings and bullets, .45-caliber bullets were

found. The location of the .45-caliber bullets was consistent with someone having fired

from the patio area of apartment No. 1 to the location where the nine-millimeter casings

were found. Defendant could not be located in apartment No. 38. He was not found until

June in Las Vegas.

B. DEFENSE

On the day of the shooting, Brewer came to Peace’s house and appeared to be on

drugs. He was acting crazy. They walked to the store. Peace had his .45-caliber

handgun that he carried for protection. Brewer told Peace to give him the gun but Peace

refused. They went to Thomas’s apartment. As they were standing near Thomas’s

apartment, someone started shooting at them. He could not see the shooter but Peace

shot back in the direction he believed the shots were being fired.

Peace was interviewed by San Bernardino County Sheriff’s Detective Justin Long

just after the shooting. Peace first stated that that he had not been in possession of a gun

and never admitted that he had shot at defendant. Peace then told Detective Long that

Brewer had the gun and Peace had to take it away from Brewer because Brewer was

acting crazy. He did not admit that he shot back at defendant. Peace finally admitted that

he was the person who shot back at defendant. Peace took Detective Long to the place

7 where he had dumped his gun and ammunition. Peace was adamant he was not the first

person to fire shots.

San Bernardino County Sheriff’s Detective Jonathan Woods interviewed Thomas

after the shooting. Thomas had heard Brewer and Peace talking about a gun prior to the

shooting but could not recall the conversation. Thomas did recall Brewer telling Peace to

give him the gun. Thomas observed Peace shoot three times but only after the initial

shots were fired. Thomas also yelled at Brewer, “ ‘This is because of you. This is all

your fucking fault.’ ”

Defendant testified on his own behalf. In April 2016, he was living in apartment

No. 38 with his girlfriend and her children. He was a member of the Five Time Crips

gang. On the morning of the shooting, he walked to his car in order to meet a friend to

buy some marijuana and cough syrup. As he was opening the door to his car, he heard

“Give me the gun. Give me the gun.” Defendant had been shot two times before and

thought that his life may possibly be in danger.

Defendant observed three men by the stairwell near apartment No. 1. Defendant

then heard one gunshot. He thought someone was trying to kill him. After he heard the

gunshot, he reached for his nine-millimeter gun that was in his waistband, which he

carried for protection, and returned fire. He believed he shot his gun three or four times.

More shots were fired in his direction. He hid behind his car. When the shooting

stopped, he drove off.

Defendant claimed to have only shot his gun four times but could have shot more.

He was afraid for his life. The shots were coming from the stairwell by apartment No. 1.

8 He remembered seeing Peace and Brewer by the stairwell. He thought that Brewer was

shooting. He went to Las Vegas because he was scared.

When defendant was first interviewed in Las Vegas, he did not admit to firing a

weapon. He later admitted he fired his weapon but only because he was fired upon first.

Defendant claimed he was just shooting “blind fire” because he was panicked. He had no

trouble with the Savala family prior to the shooting. Defendant denied that he was trying

to kill anyone. He did not point his gun at anyone.

C. REBUTTAL

San Bernardino County Sheriff’s Detective Nicholas Clark interviewed defendant

in Las Vegas. Defendant told him and another officer that he heard somewhere between

two and 10 shots being fired at him. Defendant described the shooters as Mexican.

Defendant initially denied shooting back. Defendant admitted later to shooting back at

the area where the shots were coming from. Defendant told Detective Clark that he heard

someone say “Give me the gun” as he was unlocking his car. Defendant stated the

shooting must have been because they knew he was a gang member.

DISCUSSION

A. ATTEMPTED VOLUNTARY MANSLAUGHTER CONVICTION—

DONNA

Defendant contends in his appellant’s opening brief that his conviction of

attempted voluntary manslaughter of Donna must be reversed because defendant did not

have the intent to kill her. The prosecutor presented to the jury the improper theories of

guilt of conscious disregard for life and transferred intent, which do not support an

9 attempted voluntary manslaughter conviction. Further, the prosecutor did not pursue a

kill zone theory in the trial court and it cannot be argued to support the conviction on

appeal. Since the only valid theory of guilt was that defendant intended to kill Donna,

and the evidence does not support such a finding, his conviction in count 2 must be

reversed. The People have conceded that there is insufficient evidence to support that

defendant had the intent to kill Donna.

“When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of

the judgment the existence of every fact the trier of fact reasonably could infer from the

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,

reversal of the judgment is not warranted simply because the circumstances might also

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither

reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008)

45 Cal.4th 1, 27.)

In order to be convicted of voluntary manslaughter, a defendant must have either

an intent to kill or a conscious disregard for life. (People v. Bryant (2013) 56 Cal.4th

959, 970.) “[A] killer who, acting with conscious disregard for life and knowing that the

conduct endangers the life of another, unintentionally but unlawfully kills in a sudden

10 quarrel or heat of passion is guilty of voluntary manslaughter.” (People v. Gutierrez

(2003) 112 Cal.App.4th 704, 710 (Gutierrez).)

“An attempt to commit a crime requires a specific intent to commit the crime.”

(Gutierrez, supra, 112 Cal.App.4th at p. 710.) “[A]ttempted voluntary manslaughter

cannot be premised on the theory defendant acted with conscious disregard for life,

because it would be based on the ‘internally contradictory premise’ that one can intend to

commit a reckless killing.” (Ibid.)

The theory of transferred intent also does not apply to attempt crimes. “When a

single act is charged as an attempt on the lives of two or more persons, the intent to kill

element must be examined independently as to each alleged attempted murder victim; an

intent to kill cannot be ‘transferred’ from one attempted murder victim to another under

the transferred intent doctrine.” (People v. Canizales (2019) 7 Cal.5th 591, 602.)

Here, it is undisputed that defendant could not see Donna was inside apartment

No. 1 before he began shooting. The evidence established that defendant did not see

Donna during the shooting. There was no evidence that defendant had any quarrel with

Donna, or otherwise had any negative interaction with her prior to the shooting. There

was nothing presented by the prosecutor to support that defendant had the intent to kill

Donna.

As stated, theories of transferred intent and conscious disregard could not support

the conviction. (People v. Canizales, supra, 7 Cal.5th at p. 602; Gutierrez, supra, 112

Cal.App.4th at p. 710.) Further, the prosecutor did not pursue a conviction based on the

11 kill zone theory to support that defendant had the intent to kill Donna. No substantial

evidence supports defendant’s conviction on count 2.

Since we have reversed the attempted voluntary manslaughter conviction in count

2 based on insufficiency of the evidence, we need not address defendant’s additional

contentions that instructional error, prosecutorial misconduct, cumulative error and

ineffective assistance of counsel require reversal of the conviction.

B. ATTEMPTED VOLUNTARY MANSLAUGHTER FOR COUNTS 3, 4

AND 5—THOMAS, PEACE AND BREWER

In his appellant’s opening brief, defendant restricted his arguments of sufficiency

of the evidence, instructional error, prosecutorial misconduct, ineffective assistance of

counsel and cumulative error to count 2. In the respondent’s brief, the People

acknowledged that count 2 should be reversed but also raised concerns regarding the

instructions as they applied to counts 3, 4 and 5, and did not object to supplemental

briefing by defendant. In a supplemental brief, defendant has argued that his convictions

of attempted voluntary manslaughter in counts 3, 4 and 5 must be reversed because the

jury was improperly instructed with CALCRIM No. 562 on transferred intent, and based

on the arguments by the prosecutor, it cannot be said that such erroneous instruction was

harmless beyond a reasonable doubt. The People counter that the transferred intent

instruction was proper for the voluntary manslaughter charged in count 1 for Kirk.

However, CALCRIM Nos. 572 and 460 were erroneous because they allowed the jury to

consider the theory of implied malice for the charges of attempted voluntary

manslaughter on counts 3, 4 and 5. The People concede that count 3, the attempted

12 voluntary manslaughter of Thomas, should be reversed. The People argue that the jury

could have found that defendant had the intent to kill Peace and Brewer, and that based

on the review of the record, such instructional error was not prejudicial.

1. ADDITIONAL FACTS

The parties discussed the jury instructions off the record. In court, both parties

agreed with the instructions and there were no objections on the record. The jury

instructions were read to the jury but not reported.

CALCRIM No. 572 was given, which provided “The defendant is charged in

Count 1 with Voluntary Manslaughter (as to Kirk John Savala) in violation of Penal Code

section 192, subdivision (a). [¶] To prove that the defendant is guilty of Voluntary

Manslaughter, the People must prove that: [¶] 1. The defendant committed an act that

caused the death of another person; [¶] 2. When the defendant acted, he unlawfully

intended to kill someone; [¶] AND [¶] 3. He killed without lawful excuse or

justification. [¶] OR the People must prove that: [¶] 1. The defendant intentionally

committed an act that caused the death of another person; [¶] 2. The natural

consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he

knew the act was dangerous to human life; [¶] 4. He deliberately acted with conscious

disregard for human life; [¶] AND [¶] 5. He killed without lawful excuse or

justification. [¶] An act causes death if the death is the direct, natural and probable

consequence of the act and the death would not have happened without the act. A

natural and probable consequence is one that a reasonable person would know is likely

13 to happen if nothing unusual intervenes. In deciding whether a consequence is natural

and probable, consider all of the circumstances established by the evidence.”

CALCRIM No. 460 was given and it stated “The defendant is charged with

Attempted Voluntary Manslaughter in violation of Penal Code sections 664/192,

subdivision (a), in Count 2 (as to Donna Savala), Count 3 (as to Thomas Savala), Count 4

(as to Tyler Peace), and Count 5 (as to Erik Brewer). [¶] To prove that the defendant is

guilty of Attempted Voluntary Manslaughter, the People must prove that: [¶] 1. The

defendant took a direct but ineffective step toward committing the crime of Voluntary

Manslaughter; [¶] AND [¶] 2. The defendant intended to commit Voluntary

Manslaughter. [¶] A direct step requires more than merely planning or preparing to

commit voluntary manslaughter or obtaining or arranging for something needed to

commit Voluntary Manslaughter. A direct step is one that goes beyond planning and

preparation or shows that a person is putting his plan into action. [¶] A direct step

indicates a definite and unambiguous intent to commit Voluntary Manslaughter. It is a

direct movement towards the commission of the crime after preparations are made. It is

an immediate step that puts the plan in motion so that the plan would have been

completed if some circumstances outside the plan had not interrupted the attempt. [¶] A

person who attempts to commit Voluntary Manslaughter is guilty of Attempted

Voluntary Manslaughter even if, after taking a direct step towards committing the crime,

he abandoned further efforts to complete the crime or if his attempt failed or was

interrupted by someone or something beyond his control. On the other hand, if a person

freely and voluntarily abandons his plans before taking a direct step toward committing

14 voluntary manslaughter then that person is not guilty of Attempted Voluntary

Manslaughter. [¶] To decide whether the defendant intended to commit Voluntary

Manslaughter, please refer to the separate instruction I have given you on that crime.”

The jury was not instructed on the kill zone theory.

CALCRIM No. 562 was given which provided “If the defendant intended to kill

one person, but by mistake or accident killed someone else instead, then the crime, if any,

is the same as if the intended person had been killed.”

In the prosecutor’s opening argument, he argued that defendant “sprayed” bullets

toward the patio. The prosecutor first discussed the charge of voluntary manslaughter for

Kirk and that it could be committed based on defendant having an intent to kill. The

prosecutor advised the jurors “But this option isn’t what we’re talking about here. The

People are not alleging to you that this is the option that occurred. Now, you can

consider this option if you want. If you believe that this is what the defendant did, and

that’s why he’s guilty of voluntary manslaughter, by all means, go for it . . . . [¶] But

what we’re really talking about here is Option 2.” The prosecutor explained that the jury

must first find that defendant committed an act that causes a person’s death. Further, that

act had to have natural and probable consequences that are dangerous to human life. The

prosecutor stated that “spraying” bullets at an apartment complex could result in death.

Defendant had to know the act was dangerous to life. The fourth element was whether

defendant deliberately acted with conscious disregard for life. Spraying bullets at the

apartment showed he did not care about the consequences to life. The issue for the jury

was whether defendant had justification for the shooting.

15 The prosecutor also argued that the fact defendant did not have the intent to kill

Kirk was not a defense. The prosecutor stated, “Because if you spray bullets with

conscious disregard and that act causes somebody’s death, it doesn’t matter if you’re

trying to hit one guy and you hit another.” He then argued, “Same thing goes, you know,

you might be thinking, well, he didn’t even know Kirk was there. He didn’t even know

Donna was there. It’s not a defense ladies and gentlemen. You cannot spray bullets at an

inhabited house and then say, ‘Well, I didn’t know that there was anyone inside; so,

therefore, I’m not guilty.’ It’s not a defense.”

The prosecutor then argued, “So he’s charged in counts 2 through 5 with

attempted voluntary manslaughter. Basically what I have to prove here is that he tried to

do all of those five things for voluntary manslaughter, but fell short. So what I’m talking

about here is that firing his gun toward Thomas and Tyler and Eric, but then not being

killed, is an attempt. So he’s spraying bullets with conscious disregard.” It fell short

because they did not die. The prosecutor argued for count 2, “So, again, it’s not a

defense that he didn’t intend to shoot Donna. Because when he sprayed the bullets at the

house, with conscious disregard, he was attempting to commit voluntary manslaughter.”

Defendant’s only defense was self-defense.

The prosecutor concluded that the reason defendant started shooting was because

he had a “heightened state of awareness” and panicked when he heard the word “gun.”

The prosecutor stated that defendant was not a “cold-blooded killer.” His lifestyle caused

him to act “rashly.”

16 In response, defendant’s counsel argued that defendant had testified that he had

not intended to kill anyone. As such, the jury could only find him guilty under the theory

that he shot with conscious disregard for life. Defense counsel argued that defendant was

only defending himself.

2. ANALYSIS

a. Improper Instructions

“ ‘[I]nstructions on the crime of attempt to commit murder, necessarily, when they

define the underlying crime of murder, must be limited only to that kind of murder where

a specific intent to kill or, in other words, express malice, is one of the elements.” ”

(People v. Lee (1987) 43 Cal.3d 666, 671.) “[O]nce a defendant intends to kill, any

malice he may harbor is necessarily express malice. Implied malice . . . cannot coexist

with a specific intent to kill. To instruct on implied malice in that setting, therefore, may

confuse the jury by suggesting that they can convict without finding a specific intent to

kill.” (People v. Visciotti (1992) 2 Cal.4th 1, 58, fn. omitted.)

Here, the jury was instructed with CALCRIM No. 572 that they could convict

defendant of voluntary manslaughter if they found he (1) had the intent to kill and the

person in fact was killed, or (2) if he acted with conscious disregard for human life when

he shot at apartment No. 1. This was proper for voluntary manslaughter as the jury could

properly find defendant guilty based on implied malice. CALCRIM No. 460 informed

the jury that they could find attempted voluntary manslaughter if they found that

defendant took a direct but ineffective step toward committing voluntary manslaughter.

The jury was advised to look to CALCRIM No. 572 for the definition of voluntary

17 manslaughter. As such, the jury was improperly informed that they could find attempted

voluntary manslaughter by finding that defendant had conscious disregard for life when

he shot at Thomas, Brewer and Peace. This was an incorrect theory as implied malice

cannot support attempted voluntary manslaughter.

Defendant has also argued that the jury was improperly instructed with CALCRIM

No. 562, which advised the jurors that they could find defendant guilty if defendant

intended to kill one person, but by mistake or accident killed another—the crime would

be the same as if he had the intent to kill the victim, e.g. transferred intent. This was not

an improper instruction as it clearly applied to the shooting of Kirk only, as it specifically

referred to a person who had been killed.

b. Prejudice

Recently, in People v. Aledamat (2019) 8 Cal.5th 1, the court considered the

standard of prejudice when the jury is instructed on a proper legal theory but also

instructed on an improper theory. It found that the “usual ‘beyond a reasonable doubt’

standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 . . . for

federal constitutional error applies. The reviewing court must reverse the conviction

unless, after examining the entire cause, including the evidence, and considering all

relevant circumstances, it determines the error was harmless beyond a reasonable doubt.”

(Id. at pp. 3, 13.) It stated, “The reviewing court examines what the jury necessarily did

find and asks whether it would be impossible, on the evidence, for the jury to find that

without also finding the missing fact as well.” (Id. at p. 15.) In Aledamat, the court

18 considered the entirety of the instructions and the argument of counsel in assessing

prejudice. (Id. at pp. 14-15.)

As for the instructions as a whole in this case, no other instructions limited implied

malice only to the charge of voluntary manslaughter. The jury was instructed that they

could consider implied malice to support attempted voluntary manslaughter. Although

they were also instructed for voluntary manslaughter that they could find defendant guilty

if he had the intent to kill, the prosecutor’s argument all but foreclosed the jury from

relying on intent to kill.

The error in the instructions was clearly exacerbated by the argument of the

prosecutor. The prosecutor started his argument by advising the jurors that the charge of

voluntary manslaughter did not involve the intent to kill but rather defendant sprayed

bullets at apartment No. 1 with conscious disregard for life. Although the prosecutor

stated the jury could consider intent to kill, the prosecutor advised the jury that the case

really was based on implied malice. Later, when discussing attempted voluntary

manslaughter, the prosecutor argued that defendant sprayed bullets at the apartment with

conscious disregard for life but “fell short” because no one was shot and died. The

prosecutor advised the jurors that defendant was not a “cold-blooded killer.”

In order to find that the defendant had the intent to kill Peace, Brewer, and

Thomas, the jury would have had to essentially ignore both the instructions and the

prosecutor’s argument, and consider on their own that defendant had the intent to kill

Peace, Brewer, and Thomas. The record simply does not support that the jury struck out

19 on its own and found an intent to kill for the attempted voluntary manslaughter

convictions.

The People concede that the error as to Thomas was prejudicial. Thomas was not

standing by Brewer and Peace when Peace fired at defendant. He could be seen on the

surveillance video hiding between two cars while the shots were being fired. Further,

there was no intent to kill Thomas as evidenced by defendant and Thomas speaking

immediately after the shooting; and defendant did not try to shoot Thomas despite still

having the gun in his hand. We will reverse defendant’s conviction of attempted

voluntary manslaughter of Thomas.

As for Brewer and Peace, it was undisputed that defendant shot at them and Peace

returned fire. Defense counsel argued that defendant did not have the intent to kill

anyone and that he shot in self-defense because Peace shot at him first.

The People contend that defendant had to have the intent to kill because he was

intending to kill Brewer and Peace in defense of himself. It would not make sense that he

simply shot in their direction but did not intend to kill them. Initially, the prosecutor

never argued this theory to the jury. Rather, he referred to defendant’s conscious

disregard for life by spraying bullets in the direction of the apartment to support both

voluntary manslaughter and attempted voluntary manslaughter. Further, the People’s

argument is supported by reference to defendant’s testimony, and that the jury in fact

believed defendant’s testimony that Peace shot first. In their prejudice argument, the

People rely only upon defendant’s testimony that he feared for his life when he shot

toward the stairwell because twice previously he had been shot. However, the jury

20 rejected defendant’s defense that he was fearing for his life. Moreover, Hernandez and

members of the Savala family testified that the first shots were fired by defendant.

Based on the instructions, the arguments of the prosecutor ,and the jury’s rejection

of defendant’s claim of self-defense, we cannot say with certainty that the jury based its

verdict on the attempted voluntary manslaughter of Brewer and Peace on defendant’s

intent to kill. As such, we must also reverse counts 4 and 5.

C. SECTION 12022.53, SUBDIVISION (B) ENHANCEMENT

Defendant contends the section 12022.53, subdivision (b), enhancement on count

6, the shooting at an inhabited dwelling within the meaning of section 246, was

improperly imposed and stayed as it does not apply to a violation of section 246. The

People concede the error.

Section 12022.53, subdivision (a) lists the crimes for which a section 12022.53

enhancement may be imposed. Section 246 is not included in the list and only those

crimes on the list allow for the imposition of the enhancement under section 12022.53,

subdivision (b). Section 12022.53, subdivision (d), on the other hand, provides,

“Notwithstanding any other provision of law, any person who, in the commission of a

felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section

26100, personally and intentionally discharges a firearm and proximately causes great

bodily injury, as defined in Section 12022.7, or death, to any person other than an

accomplice, shall be punished by an additional and consecutive term of imprisonment in

the state prison for 25 years to life.”

21 The trial court imposed and stayed the section 12022.53, subdivision (b),

enhancement on count 6. However, it could not be imposed on the violation of section

246. We will order that the 12022.53, subdivision (b), enhancement be stricken.

D. SECTION 12022.53, SUBDIVISION (D) ENHANCEMENT

Defendant contends that although his trial counsel brought a motion for the trial

court to dismiss the firearm enhancements found true pursuant to section 12022.53,

subdivisions (b), and (d), on count 6, the trial court did not understand that the

subdivision (b), enhancement was improper. As such, the trial court was not fully aware

of its discretion when it denied the request to dismiss the enhancements under section

12022.53, subdivision (h), believing that both enhancements were tied together and it

could not strike the section 12022.53, subdivision (d), enhancement.4

Prior to sentencing, defendant brought a motion to strike the gun enhancement

found true pursuant to section 12022.53, subdivision (d). Defendant relied on section

12022.53, subdivision (h). Defendant contended that the prosecutor did not charge him

with murder or attempted murder, but rather manslaughter. He contended it would result

in a fair sentence if the enhancement was stricken.

At sentencing, the trial court stated that it had reviewed the motion. Defendant

argued at the hearing that the trial court should consider that this was a voluntary

manslaughter case and not murder. Further, the trial court should consider that defendant

4 Defendant does not argue that the trial court could have imposed a lesser firearm enhancement.

22 had been a victim of a gang shooting prior to this incident. Defendant believed he was in

danger at the time of the shooting. Defendant also had expressed his remorse.

The trial court ruled, “In terms of the sentencing, I’m going to do my ruling as part

of the sentencing, I’m going to impose the sentences that I think are appropriate and give

my reasons. I do have discretion under the new gun enhancements, and if you look at

Romero and the factors under Romero, they don’t apply to this case. There’s no reason

for me to strike the gun enhancements. I think that it would be an abuse of discretion to

do so. So I decline to do that.”

The trial court then heard victim statements and a statement by the defendant

expressing his remorse. The trial court considered the mitigating and aggravating

circumstances; it found the circumstances in aggravation were “substantial.” The trial

court imposed the section 12022.53, subdivision (d), enhancement of 25 years to life, and

stayed the section 12022.53, subdivision (b), enhancement for count 6.

“The court may, in the interest of justice pursuant to Section 1385 and at the time

of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this

section. The authority provided by this subdivision applies to any resentencing that may

occur pursuant to any other law.” (§ 12022.53, subd (h).) “The factors that the trial court

must consider when determining whether to strike a firearm enhancement under section

12022.53, subdivision (h) are the same factors the trial court must consider when handing

down a sentence in the first instance.” (People v. Pearson (2019) 38 Cal.App.5th 112,

117.) The court can rely on those factors listed in California Rules of Court, Rule 4.428,

which include “the effect that striking the enhancement would have on the status of the

23 crime as a strike, the accurate reflection of the defendant’s criminal conduct on his or her

record, the effect it may have on the award of custody credits, and any other relevant

consideration.” (Pearson, at p. 117.) The court may also consider the factors in

California Rules of Court, Rule 4.410, listing the “general objectives in sentencing.”

(Pearson, at p. 117.)

“Where, as here, a discretionary power is . . . by express statute vested in the trial

judge, his or her exercise of that wide discretion must not be disturbed on appeal except

on a showing that the court exercised its discretion in an arbitrary, capricious or patently

absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan

(1986) 42 Cal.3d 308, 316.) The burden is on the party attacking the sentence “ ‘ “ ‘ to

clearly show that the sentencing decision was irrational or arbitrary.’ ” ’ ” (People v.

Pearson, supra, 38 Cal.App.5th at p. 116.)

Here, defendant insists that the trial court may have considered the issue

differently had it known that the section 12022.53, subdivision (b), enhancement was

invalid. The record does not support that the trial court would have decided differently.

The trial court stated that it was considering all of the aggravating factors and felt that

none of the gun enhancements were properly dismissed. Remand is not necessary in

order for the trial court to reconsider the issue.

Based on the foregoing, defendant was appropriately sentenced on count 6 to the

upper term of 7 years, plus 25 years to life for the section 12022.53, subdivision (d),

enhancement. The section 12022.53, subdivision (b), enhancement must be stricken.

24 The sentence on count 1 was properly stayed and based on the finding in this opinion that

counts 2, 3, 4 and 5 must be reversed, those sentences must be stricken.

DISPOSITION

We reverse counts 2, 3, 4, and 5. We strike the sentences on counts 2, 3, 4, and 5

and the sentences on the gun enhancements for those counts. We also strike the section

12022.53, subdivision (b), enhancement. The superior court is ordered to prepare a

corrected abstract of judgment reflecting the proper convictions and sentence in

accordance with this opinion; the superior court is further directed to forward a copy of

the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.

25