BACKGROUND

The following facts are taken from this court’s unpublished opinion on

Sambrano’s direct appeal, People v. Sambrano (Nov. 15, 2013, E054725) [nonpub. opn.],

and the record in that appeal. (See In re Taylor (2019) 34 Cal.App.5th 543, 556-557.)

2 We describe only those facts relevant to the attempted murder convictions and the kill

zone theory.

Sambrano and his two codefendants, Anthony Lares and Daniel Torres, are all

alleged members or associates of a gang called Varrio Coachella Rifa 52 (Varrio

Coachella). On the night in question, they drove into the territory of a rival gang, North

Side Indio (North Side). Sambrano drove the car, Torres was the front passenger, and

Lares was in the back seat. After repeatedly driving past a group of people gathered

outside a house, Sambrano stopped the car, and Lares and Torres began shooting. Lares

admitted firing at least 10 rounds from his .30–caliber M1 carbine rifle. Torres fired an

unknown number of shots from a .22–caliber handgun that held five rounds. The shots

killed one person and seriously wounded two others, all of whom were outside the house

at the time of the shooting.

At trial, the parties disagreed about the motivation for the shooting. The

prosecutor’s theory was that the shooting was gang related, specifically that Sambrano,

Lares, and Torres were retaliating for a rival gang’s graffiti in Varrio Coachella territory,

near the home of Sambrano’s godmother. The prosecutor presented both photos

depicting the allegedly offending graffiti and expert testimony regarding the general

significance of gang graffiti and the particular significance of a gang’s leaving its graffiti

in the territory of a rival. In this case, North Side not only left graffiti in Varrio

Coachella territory but also obliterated Varrio Coachella’s own gang graffiti, which the

expert opined would be viewed by Varrio Coachella members as disrespectful.

3 According to the expert, when a gang member believes they have been disrespected, they

must retaliate with violence. Otherwise, the status of both the gang and the member

would be diminished.

Both Sambrano and Lares eventually admitted that they were involved in the

shooting. Lares claimed that they had been looking for a girl he knew, who lived

somewhere in the neighborhood. While looking for her, they passed by the gathering in

front of the house. When they drove by a second time, Torres fired at the group. But

Lares was hallucinating as a result of various substances he had ingested, and he thought

shots had been fired at them from the group outside the house. That is why he fired back

with the M1 rifle, which he kept in the trunk of the car for protection.

Sambrano told law enforcement officers that on the evening of the shooting he

was driving his companions around to try to find a girl he knew, concerning a matter

unrelated to the graffiti, and he did not know that his companions had guns. Sambrano

claimed that he drove past the house at least once, turned the car around, and drove back

to see if the girl they were looking for was among the people outside the house. He was

just pulling up to the curb in front of the house and about to park the car when he heard

seven or eight gunshots, after which Lares opened fire from the back seat. Sambrano

then immediately pulled away from the curb and drove off.

The Rodriguez family lived in the house where the shooting occurred. Jacob

Rodriguez and his girlfriend had just walked out the front door when the gunfire started.

Jacob’s girlfriend was hit by three bullets and died. Jacob and another attendee who was

4 standing outside were hit by bullets too, but they survived. The four remaining attempted

murder counts involved four people who were inside the house when the shooting

occurred. Three of them were children. None was hit by a bullet.

DISCUSSION

A. Timeliness

The People argue that Sambrano’s habeas petition is procedurally barred as

untimely. We are not persuaded.

“Whether a claim has been timely presented is assessed based on an indeterminate

reasonableness standard.” (Robinson v. Lewis (2020) 9 Cal.5th 883, 890 (Robinson).)

We assume for purposes of our analysis that as of the Supreme Court’s issuance of

Canizales in June 2019 (Canizales, supra, 7 Cal.5th at p. 591), Sambrano “‘“knew, or

reasonably should have known, of the information offered in support of the claim and the

legal basis for the claim”’” (In re Reno (2012) 55 Cal.4th 428, 460, superseded by statute

on another ground as stated in In re Friend (2021) 11 Cal.5th 720, 727-729). Sambrano

is not a lawyer, and he was not represented by a lawyer between 2013 and 2021. In 2021,

a lawyer was appointed to represent Sambrano on appeal from the denial of a

resentencing petition under Penal Code section 1170.95. This habeas petition was filed

by Sambrano’s attorney about two months later.

We conclude that given these circumstances the habeas petition was timely filed

under the applicable “indeterminate reasonableness standard.” (Robinson, supra, 9

Cal.5th at p. 890; see also In re Saunders (1970) 2 Cal.3d 1033, 1040 [delay of nearly

5 five years was justified given that the petitioner “had only a ninth grade education and

was without experience or education in law”].)

B. Canizales and the Kill Zone Theory

“The elements of attempted murder are ‘specific intent to kill and the commission

of a direct but ineffectual act toward accomplishing the intended killing.’ [Citation.]

‘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.’ [Citation.] But consistent with those

requirements, the kill zone theory, which was first approved by the Supreme Court in

[Bland, supra, 28 Cal.4th at pp. 327, 330], ‘yields a way in which a defendant can be

guilty of the attempted murder of victims who were not the defendant’s “primary

target.”’” (People v. Cardenas (2020) 53 Cal.App.5th 102, 111 (Cardenas).)

In Canizales, the Supreme Court reexamined the kill zone theory and clarified its

scope. (Canizales, supra, 7 Cal.5th at p. 606; Cardenas, supra, 53 Cal.App.5th at

p. 112.) Canizales 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

6 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, at p. 607.)

The Supreme Court further explained that “the kill zone theory does not apply

where ‘the defendant merely subjected persons near the primary target to lethal risk.’”

(Canizales, supra, 7 Cal.5th at p. 607.) The Supreme Court emphasized that “‘in a kill

zone case, the defendant has a primary target and reasons [that] he cannot miss that

intended target if he kills everyone in the area in which the target is located. In the

absence of such evidence, the kill zone instruction should not be given.’” (Ibid., quoting

People v. Medina (2019) 33 Cal.App.5th 146, 156 (Medina).) The court also rejected the

Attorney General’s argument “that for the kill zone theory to apply it is not necessary that

the defendant have a primary target.” (Canizales, at p. 608.) The court concluded to the

contrary that in order for the kill zone theory to apply, “evidence of a primary target is

required.” (Ibid.)

C. Retroactivity of Canizales

In general, we will not issue a writ of habeas corpus for “an issue which was

raised and rejected on direct appeal, or which could have been, but was not, raised on

direct appeal.” (In re Saldana (1997) 57 Cal.App.4th 620, 627.) “An exception to the

rule applies ‘“when there has been a change in the law affecting the petitioner.”’” (In re

7 Rayford (2020) 50 Cal.App.5th 754, 770 (Rayford); In re Terry (1971) 4 Cal.3d 911, 916

[new United States Supreme Court decision justifies habeas corpus petition on issue not

previously raised]; In re Harris (1993) 5 Cal.4th 813, 841, disapproved on another

ground in Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 854, fn. 5.) “‘To trigger this

exception, the change in the law must have retroactive effect.’” (Rayford, supra, at

p. 770.)

The Supreme Court did not state whether Canizales applies retroactively to final

judgments. (Canizales, supra, 7 Cal.5th at pp. 602-618.) Relying on Rayford, supra, 50

Cal.App.5th 754, Sambrano argues that Canizales applies retroactively to cases like his

that were final when the decision issued, because it substantively changed the law on the

kill zone theory. The People agree, and so do we.

Applying both federal and state law retroactivity standards, Rayford held that

Canizales, supra, 7 Cal.5th 591, applies retroactively to cases in which the judgment is

already final. (Rayford, supra, 50 Cal.App.5th at pp. 770-778.) Rayford concluded that

Canizales affected a substantive change in the law. (Rayford, at pp. 776-778.) Rayford

further explained that Canizales “altered the range of conduct for which a defendant may

be tried and convicted of attempted premeditated murder by holding trial courts should

only instruct the jury on the kill zone theory of concurrent intent where ‘there is sufficient

evidence to support a jury determination that the only reasonable inference from the

circumstances of the offense is that a defendant intended to kill everyone in the zone of

fatal harm.’” (Rayford, at p. 777.)

8 We agree with Rayford’s analysis and conclusion. Canizales applies retroactively

to Sambrano’s case even though the judgment was final when Canizales was decided.

D. The Kill Zone Jury Instruction Was Erroneous

On the attempted murder counts, the trial court instructed the jury with former

CALCRIM No. 600, stating that Sambrano could be found guilty of attempted murder if

he created a kill zone and intended to kill everyone within that zone.1 The jury also was

instructed that it could find Sambrano guilty of attempted murder if he intended to kill

each of the six victims specifically. In closing argument, the prosecutor relied almost

exclusively on the kill zone theory in arguing that Sambrano possessed the necessary

mental state for the attempted murder counts.

In Canizales, the jury was instructed with the same version of CALCRIM No. 600

given here. (Canizales, supra, 7 Cal.5th at p. 601 & fn. 3.) Canizales concluded that the

instruction did not accurately describe the kill zone theory. (Id. at pp. 609, 613.)

Canizales explained that the instruction was flawed because it did not adequately define

the term “kill zone” and failed to direct the jury to consider the circumstances of the

attack in determining whether the defendant’s attempt to kill everyone around the

1 The jury was instructed that the prosecution had to prove two elements to prove attempted murder: “1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person.” The jury was instructed as follows concerning the kill zone theory: “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.’ A person need not be aware of other victims in the ‘kill zone.’ In order to convict the defendant of the attempted murder of [the six alleged victims], the People must prove that the defendant not only intended to kill a person at the gathering but also either intended to kill [the six alleged victims] or intended to kill everyone within the kill zone.”

9 primary target was undertaken as a mean of killing the primary target. (Ibid.) The

Supreme Court recommended that the instruction be revised. (Id. at p. 609.)

Sambrano argues that the trial court erred by giving the same flawed version of

CALCRIM No. 600 given in Canizales, and the People concede the point. We agree with

the parties. It was error to instruct the jury with the former version of CALCRIM No.

600. In addition to the flaws in the instruction identified by the Supreme Court in

Canizales, the instruction did not require the jury to find that Sambrano specifically

intended to kill everyone in the area around the primary target as a means of killing that

primary target, which is required for application of the kill zone theory. (Canizales,

supra, 7 Cal.5th at p. 607.) Indeed, the instruction did not define a kill zone in terms of a

primary target at all—it did not even state that a kill zone is an area in which the primary

target is located.

We note that CALCRIM No. 600 was heavily revised in light of Canizales, and it

is now considerably longer and more complex than the version given at Sambrano’s trial.

But even the current, revised version of the instruction largely retains one of the defects

we have identified. In articulating the elements of the kill zone theory, the revised

instruction does not require the jury to find that the defendant intended to kill everyone in

the area around the primary target in order to ensure the death of the primary target.

Instead, the revised version provides: “A person may intend to kill a primary target and

also [a] secondary target[s] within a zone of fatal harm or ‘kill zone.’ A ‘kill zone’ is an

area in which the defendant used lethal force that was designed and intended to kill

10 everyone in the area around the primary target.” (CALCRIM No. 600, italics added.)

Again, Canizales clarified that unless the defendant intended to kill everyone in the area

around the primary target in order to effectuate the killing of the primary target, the kill

zone theory does not apply. (Canizales, supra, 7 Cal.5th at p. 607 [a kill zone is “an area

in which the defendant intended to kill everyone present to ensure the primary target’s

death”]; ibid. [“‘[I]n a kill zone case, the defendant has a primary target and reasons

[that] he cannot miss that intended target if he kills everyone in the area in which the

target is located. In the absence of such evidence, the kill zone instruction should not be

given’”].) The revised instruction’s only allusion to that requirement appears in the last

sentence of the instruction, which tells the jury, “If you have a reasonable doubt whether

the defendant . . . intended to kill [the primary target] by killing everyone in the kill zone,

then you must find the defendant not guilty of the attempted murder of [the other people

in the zone].” (CALCRIM No. 600.) But jurors might well be confused when they

discover in the final sentence that a reasonable doubt about whether the defendant

intended to kill the primary target by killing everyone in the kill zone requires them to

find the defendant not guilty, given that nowhere else does the instruction say an intent to

kill the primary target by killing everyone in the kill zone is required.

In Canizales, 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.” (Canizales, supra, 7 Cal.5th at

11 p. 608.) Moreover, the Supreme Court has repeatedly explained that jury instructions on

the kill zone theory are never required.2 (Stone, supra, 46 Cal.4th at pp. 137-138; Smith,

supra, 37 Cal.4th at p. 746; Bland, supra, 28 Cal.4th at p. 331, fn. 6.)

Given the Supreme Court’s words of caution, the apparently ongoing difficulty in

crafting an error-free instruction on the kill zone theory, and the absence of any

requirement to give a kill zone instruction, it is not clear why it would ever be prudent to

give such an instruction. It appears easy to commit error by instructing the jury on the

kill zone theory, but it is literally impossible to err by declining to do so.3

E. The Error Was Prejudicial

Canizales held that the then-current version of CALCRIM No. 600 presented the

jury with a “legally inadequate theory” (Canizales, supra, 7 Cal.5th at p. 613) because it

provided “no adequate definition to enable the jury to determine whether the [kill zone]

theory was properly applicable” (id. at p. 615). “[W]e therefore consider whether the

2 CALCRIM No. 600 introduces the kill zone instruction with the following bracketed note: “.” The note is erroneous, because kill zone instructions are never required. (Stone, supra, 46 Cal.4th at pp. 137-138; Smith, supra, 37 Cal.4th at p. 746; Bland, supra, 28 Cal.4th at p. 331, fn. 6.) An accurate note would be: . In addition, to remove any potential ambiguity, it might be helpful if the bench notes for CALCRIM No. 600 included a direct statement that kill zone instructions are never required, citing Stone, Smith, and Bland.

3 If a court deems it appropriate to instruct a jury on the kill zone theory, the instruction could arguably be reduced to a single sentence (and without use of the term “kill zone”) along something like the following lines: If, having considered all the circumstances of the attack, you find beyond a reasonable doubt that the defendant intended to kill by killing everyone in the area in which was located, then you may infer, but are not required to infer, that the defendant intended to kill everyone in that area.

12 error in instructing the jury was harmless beyond a reasonable doubt under Chapman v.

California (1967) 386 U.S. 18.” (Rayford, supra, 50 Cal.App.5th at p. 781.)

The People argue that the erroneous kill zone instruction was harmless beyond a

reasonable doubt because “there is no way” that a properly instructed jury “could have

concluded anything other than that the shooters intended to create and did create a zone

of fatal harm.” We disagree.

Contrary to the People’s argument, the kill zone theory is categorically

inapplicable to this case. There is no evidence that any person at the gathering in front of

the Rodriguez house was the primary target of defendants’ attack. There is no evidence

that Sambrano knew or recognized anyone at the gathering or that the Rodriguez house

had been defendants’ planned destination. Moreover, there is no evidence that any

particular person at the gathering did or said anything that might have led defendants to

target a particular person when the shooting commenced. Instead, the evidence showed

only that defendants began firing at the group because of the group’s location within rival

gang territory. Because there was no evidence of a primary target, the kill zone

instruction should not have been given. (Canizales, supra, 7 Cal.5th at p. 608; Cardenas,

supra, 53 Cal.App.5th at p. 118 [“without a primary target, the kill zone theory is

categorically inapplicable”]; Medina, supra, 33 Cal.App.5th at p. 156 [“a kill zone

instruction is not appropriate where a defendant fires a deadly weapon into a group of

individuals with the intent to kill but without a primary target” “even if the defendant

13 intends to kill everyone in that group”]; People v. Mariscal (2020) 47 Cal.App.5th 129,

139 [“the kill zone theory only applies when there is an intended victim”].)

The absence of evidence of a primary target did not, however, enable the jury to

determine that the kill zone theory did not apply, because the erroneous instruction did

not tie the definition of a kill zone to a primary target. Rather, the jury might have

applied the kill zone theory by reasoning that Sambrano “intend[ed] to kill everyone in a

particular zone of harm or ‘kill zone,’” even though as a matter of law the theory did not

apply because there was no evidence of a primary target.

The prosecutor’s closing argument exacerbated the problem. The prosecutor

relied almost exclusively on the kill zone theory—which does not apply to this case at

all—in arguing that Sambrano possessed the necessary mental state for attempted murder.

Moreover, the prosecutor’s argument erroneously articulated the kill zone theory in terms

of a “zone of danger” and informed the jury that a primary target was not necessary: “So

in this case, in going back to as I told you what I’ll say 100 times, they had the intent to

kill everyone there, ladies and gentlemen, within and without the residence. [¶] When

you fire bullets like that, you create a zone of danger. It’s called concurrent intent. You

may have a target in mind, you may not, you may just be shooting to kill everyone, but

you’ve set a zone of danger. And when you do that, you’re attempting to kill everyone

within that zone whether you know they’re there or not.” The prosecutor further

explained: “If you open fire on a group of people with high-powered weapons, you’ve

created a zone of danger. You may have no target in mind. Same with the plane. Let’s

14 say [a particular person] just got on the plane and someone just wanted to blow it up.

Doesn’t matter; all right? You still have the concurrent intent and you’re still liable for

everyone else that you tried to kill that’s in that zone. Does that make sense. [¶] Does

that make sense that when you have an area that you’ve opened fire on, you’ve created a

zone of danger, a kill zone, and that anyone in there you’re liable for?”

The prosecutor’s argument erred in two ways: It told the jury that the kill zone

theory can apply even if there is no primary target (“You may have a target in mind, you

may not”; “You may have no target in mind”), and it told the jury that creating a “zone of

danger” is sufficient for attempted murder liability. But a kill zone is not merely a zone

of danger. As the Supreme Court explained in Canizales, “the kill zone theory does not

apply where ‘the defendant merely subjected persons near the primary target to lethal

risk.’” (Canizales, supra, 7 Cal.5th at p. 607.) Thus, as in Canizales, the prosecutor’s

description of the kill zone as a zone of danger “was significantly broader than a proper

understanding of the theory permits. Indeed, it essentially equated attempted murder with

implied malice murder.” (Id. at p. 614.) “Thus, the prosecutor’s argument had the

potential to mislead the jury to believe that the mere presence of a purported victim in an

area in which he or she could be fatally shot is sufficient for attempted murder liability

under the kill zone theory.” (Ibid.) And the “legally erroneous argument was particularly

prejudicial because the prosecutor relied almost exclusively on the kill zone theory in

support of the attempted murder counts.” (Cardenas, supra, 53 Cal.App.5th at p. 118.)

15 Given that (1) the jury should not have been instructed on the kill zone theory at

all, (2) the instruction’s description of the kill zone theory was erroneous, (3) the

prosecutor relied almost exclusively on the kill zone theory in arguing that Sambrano had

the necessary mental state for attempted murder, and (4) the prosecutor’s argument

concerning the kill zone theory was likewise erroneous, we cannot conclude beyond a

reasonable doubt that a properly instructed jury would not have reached a verdict more

favorable to Sambrano. Accordingly, the convictions on the attempted murder counts

must be reversed.

DISPOSITION

The petition for writ of habeas corpus is granted. The six attempted murder

convictions (counts 3, 4, 8, 9, 10, & 11) are vacated. We remand the matter to the trial

court with directions to allow the People to choose whether to retry Sambrano on the

attempted murder counts.

CERTIFIED FOR PUBLICATION

MENETREZ

J.

We concur:

CODRINGTON

Acting P. J.

FIELDS

J.

16