P. v. Paredes

Filed 7/10/06 P. v. Paredes CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS F. PAREDES,
Defendant and Appellant.
B182323
(Los Angeles County
Super. Ct. No. KA065698)
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert
M. Martinez, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson
and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________

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Carlos Paredes was convicted of two counts of voluntary manslaughter (Pen.
Code,1
§ 192, subd. (a)) for causing the deaths of Monique Almanza and Raymond
Flores. On appeal, he challenges his conviction for the voluntary manslaughter of
Almanza on the basis that the doctrine of transferred intent was inapplicable; claims that
the trial court erred in providing additional instruction on transferred intent; and contends
that the trial court violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) by
basing his sentence on facts neither found by the jury nor admitted by Paredes. We
conclude that Paredes was properly convicted of voluntary manslaughter; follow
California Supreme Court guidance with respect to Blakely; and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2004, while riding in a sport utility vehicle, Paredes shot and killed
Monique Almanza and Raymond Flores as they drove a car on the 71 freeway in
Pomona. The shooting was preceded by conflict between Flores and Paredes and his
companions, three male minors. Flores threatened at least one of the minors, Paredes’s
cousin. The clash culminated in Paredes’s vehicle, which was being driven by one of the
minors, pulling alongside Flores’s car on the freeway. Paredes shot multiple rounds into
Flores’s car, killing both occupants.
Paredes was charged with first degree special circumstances murder. (§§ 187,
190.2, subds. (a)(3) & (a)(21).) Paredes did not contest that he shot into Flores’s car, but
his counsel argued self-defense, heat of passion, and provocation. The jury was
instructed on first degree murder with special circumstances, second degree murder,
voluntary manslaughter, and involuntary manslaughter. The trial court gave CALJIC
No. 8.65, concerning transferred intent. The jury asked questions about transferred
intent, leading the trial court to repeat and amplify CALJIC No. 8.65 over defense
1
All further statutory references are to the Penal Code.

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objection. Soon thereafter, the jury convicted Paredes of voluntary manslaughter of both
victims. Paredes appeals.
DISCUSSION
I. Transferred Intent
Transferred intent is defined by CALJIC No. 8.65 as follows: “When one
attempts to kill a certain person, but by mistake or inadvertence kills a different person,
the crime, if any, so committed is the same as though the person originally intended to be
killed, had been killed.” Here, the jury presumably convicted Paredes of voluntary
manslaughter for the death of Almanza on the basis of transferred intent, having
concluded that the shooting of Flores constituted voluntary manslaughter.
The criminal act of killing another human being constitutes either murder or
manslaughter, depending on whether the element of malice is present: “The
distinguishing feature is that murder includes, but manslaughter lacks, the element of
malice.” (People v. Rios (2000) 23 Cal.4th 450, 460 (Rios).) Paredes argues that
transferred intent is only applicable to homicides involving malice—that is, to murders.
He begins with the principles that the doctrine of transferred intent requires the
perpetrator to “attempt[] to kill” (CALJIC No. 8.65) and that to make a legal attempt one
must have “a specific intent to commit the crime.” (CALJIC No. 6.00.) All of this is
uncontroverted enough. Paredes then concludes that because “[g]enerally, the intent to
unlawfully kill constitutes malice” (Rios, at p. 460), the “idea behind transferred intent is
to apply the doctrine when the defendant, having both the specific intent and malice,
intends to kill one person but instead kills another.” In other words, Paredes argues that
the use of the term “attempt” serves to restrict the doctrine to malicious homicides—to
murders, not manslaughters.
The doctrine, however, is transferred intent, not transferred malice. While
generally, the intent to unlawfully kill constitutes malice and makes a homicide a murder,

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intent and malice are not universally interchangeable. The absence of malice is not
necessarily the same as the absence of intent. (See, e.g., Rios, supra, 23 Cal.4th at
pp. 460-461.) The divergence between malice and intent arises in the context of exactly
the crime here—voluntary manslaughter. “‘[A] defendant who intentionally and
unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when
the defendant acts in a “sudden quarrel or heat of passion” (§ 192, subd. (a)), or when the
defendant kills in “unreasonable self-defense”—the unreasonable but good faith belief in
having to act in self-defense [citations].’ ([People v. ]Barton [(1995)] 12 Cal.4th [186,]
199.) . . . [H]eat of passion and unreasonable self-defense reduce an intentional, unlawful
killing from murder to voluntary manslaughter by negating the element of malice that
otherwise inheres in such a homicide (ibid.) . . . .” (People v. Breverman (1998) 19
Cal.4th 142, 153-154.) The result: an intentional killing that lacks malice, exactly the
situation presented here with respect to victim Flores. The fact that intent and malice
often go hand in hand in the homicide context does not mean that malice is required for
the doctrine of transferred intent to apply.
While Paredes’s argument does not lead to the restriction of transferred intent to
the context of murder, it does properly focus on the key component of intent. The intent
to kill that is necessary for an attempt to kill is precisely the basis for the doctrine of
transferred intent, which our Supreme Court has observed may more accurately be
described as a doctrine of transferred mental state. (People v. Bland (2002) 28 Cal.4th
313, 319, fn. 1.) As the Supreme Court has recently commented, the transferred intent
doctrine is a “theory of liability that long has been part of California law and one that
‘connotes a policy—that a defendant who shoots at an intended victim with intent to kill
but misses and hits a bystander instead should be subject to the same criminal liability
that would have been imposed had he hit his intended mark.’ [Citations.]” (People v.
Shabazz (2006) 38 Cal.4th 55, 62 [second emphasis added].) While this doctrine is most
often applied in the context of a murder charge, nothing in California decisional or
statutory law limits it to murder or prevents it from being applied to a voluntary
manslaughter charge. Indeed, the policy rationale and legal reasoning extend equally to

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the voluntary manslaughter context. In either event, the doctrine reflects “the
blameworthiness of someone who, acting with the intent to kill . . . actually has killed
another individual” (Shabazz, at p. 64), and allows the perpetrator to be “punished for a
crime of the same seriousness as the one he tried to commit against his intended victim.”
(People v. Scott (1996) 14 Cal.4th 544, 546 (Scott).) We note that the California
Supreme Court, while not deciding this issue, has observed that the doctrine serves to
transfer intent to “an unintended homicide victim,” not an unintended murder victim.
(Bland, at p. 326.)
Paredes also argues that transferred intent may not properly be applied in the
context of voluntary manslaughter because voluntary manslaughter may be committed
without any intent to kill at all, but may be committed when a perpetrator acts with
conscious disregard for life. (CALJIC No. 8.40.) Because the transferred intent doctrine
requires an intent to kill, Paredes argues, the doctrine of transferred intent cannot apply to
a crime that can be committed without any specific intent to kill. We do not understand
how the possibility that a crime can be accomplished without the intent necessary for
transferred intent makes the doctrine inapplicable when the crime is accomplished with
the requisite intent.2
If a perpetrator is acting not with the intent to kill but with conscious
disregard for life, the transferred intent doctrine would not apply; but it would not be
needed, as the conscious disregard for life that accompanied the fatal conduct would exist
absent any imputation of mental state. The act performed in conscious disregard for
human life supports voluntary manslaughter convictions for all the lives lost by its
commission. (See People v. Taylor (2004) 32 Cal.4th 863, 869 [“defendant acted with
knowledge of the danger to and conscious disregard for life in general. That is all that is
required for implied malice murder. He did not need to be specifically aware of how
many potential victims his conscious disregard for life endangered”].) In other words, if
2
The jury found true the allegations that Paredes inflicted great bodily injury upon
his victims “with the intent to do so” as a “result of discharging a firearm from a motor
vehicle.” Whether Paredes intended to kill Almanza was in dispute at trial, but his intent
to kill Flores was undisputed.

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the jury had believed that Paredes shot into the car in which Flores and Almanza were
riding without any intent to kill but with conscious disregard for life (which it did not,
based on its finding that Paredes intended to inflict great bodily injury), he would
properly have been convicted of voluntary manslaughter of both victims without any
transfer of intent.
Because we have identified no legal impediment to the application of the doctrine
of transferred intent in the context of voluntary manslaughter and because the policy
basis for the doctrine applies with equal force to this form of homicide as it does to
murder, we conclude that the conviction for the voluntary manslaughter of Almanza may
properly have been based on the doctrine of transferred intent.
II. Amplification of CALJIC No. 8.65
Paredes argues that even if the doctrine of transferred intent could properly have
been invoked here, the trial court’s additional instructions to the jury effectively directed
a verdict against Paredes on the charges relating to the death of Almanza. The court gave
the jury this advisement3
in response to their questions as to what transferred intent is and
whether the mental state prompting the shooting of Flores had to be the same as the
mental state causing the shooting of Almanza:
“Instruction number 8.65 provides that, quote, ‘When one attempts to kill a certain
person [but] by mistake or inadvertence kills a different person, the crime, if any, so
committed is the same as though the person originally intended to be killed had been
killed.[’] This principle of law is referred to as the doctrine of transferred intent.
“If you find that a killing in this case was the result of mistake or inadvertence
during the killing of another human being, the intent or mental state accompanying the
3
The written version of this instruction was not included in the record on appeal;
the following was taken from the court’s reading of the proposed instruction to counsel
before the court sent it in to the jury room.

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killing of the unintended victim is the same as that accompanying the killing of the
intended victim. On the other hand, if you find the killing was not the result of mistake
or inadvertence, the mistake [sic] or mental state accompanying the killing may be—may
but not necessarily be [sic] the same as the intent or mental state accompanying the
killing of any other victim.
“If you should find that a killing in this case was not the result of mistake and/or
inadvertence, you must determine whether the defendant is guilty or not guilty of an
unlawful killing, and, if so, find him—and if you find him guilty of an unlawful killing,
you must then determine whether the killing of murder [sic], first degree murder, second
degree murder, voluntary manslaughter, or involuntary manslaughter.”
Paredes argues that this amplification of CALJIC No. 8.65 left the jury with two
options: if jurors found Paredes intended to kill Flores but killed Almanza through
mistake or inadvertence, they had to find that Paredes harbored the same intent as to both
victims; and if the jurors found that the victims were not killed as the result of mistake or
inadvertence, only then would they independently determine his mental state with respect
to each victim. Paredes complains that only under the second option would the jury
determine whether the killing was first or second degree murder or involuntary or
voluntary manslaughter—meaning that the jury could not conclude that Almanza’s death
resulted from mistake or inadvertence and that it qualified as involuntary manslaughter
because Paredes did not know she was in the car.
To the extent that Paredes complains about the first of the two options, he is not
complaining about the trial court’s instruction as much as he is dissatisfied with the
doctrine of transferred intent. The court’s instructions did not mandate that the intent
transfer from Flores to Almanza. If the jury found that Paredes intended to kill Flores
and that he killed Almanza by mistake, CALJIC No. 8.65, given again to the jury in
response to its questions, offered the jury two options: either to conclude that there was
no crime in the killing of Almanza or to transfer the intent over from the killing of Flores
to that of Almanza. The remainder of the trial court’s amplification did not highlight the

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option of finding that no crime occurred, but the language of CALJIC No. 8.65 gave the
jury that choice.
Paredes’s larger concern is that the instructions foreclosed the possibility of a
conviction for involuntary manslaughter because the jury could not consider the
possibility that Almanza’s death resulted by mistake or inadvertence because Paredes,
while intending to kill Flores, did not know that Almanza was in the car.4
This again is a
quarrel with the transferred intent doctrine rather than with its amplification by the trial
court. Paredes’s alleged lack of knowledge of Almanza’s presence in the car is irrelevant
for the purposes of transferred intent—provided that he intended to kill Flores when he
opened fire into the car, an unintentional killing committed in the act of attempting to kill
Flores is subject to the application of the transferred intent doctrine. (People v. Carlson
(1974) 37 Cal.App.3d 349, 356-357 [transferred intent doctrine applicable to killing of
fetus unknown to defendant who intentionally killed a pregnant woman]. This is the
policy choice that forms the basis of the transferred intent doctrine: “that a defendant
who shoots with an intent to kill but . . . hits a bystander . . . should be punished for a
crime of the same seriousness as the one he tried to commit against his intended victim.”
(Scott, supra, 14 Cal.4th at p. 546.)
It is not true that the court’s instructions precluded Paredes from being convicted
of involuntary manslaughter in the death of Almanza. Paredes could have been convicted
of involuntary manslaughter of both victims had the jury believed that Paredes acted
without intent to kill or conscious disregard for life. (CALJIC No. 8.45 [defining
involuntary manslaughter].) It is only once the jury concluded that the death of Flores
was murder or manslaughter that the transferred intent doctrine could have limited the
jury’s options with respect to evaluating the death of Almanza and effectively ruled out
4
Paredes’s argument assumes that the jury has already found that the shooting of
Flores constituted voluntary manslaughter and is carrying the intent over to the shooting
of Almanza.

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an involuntary manslaughter conviction.5
Even if there could, under some circumstances,
be merit to Paredes’s contention that the transferred intent doctrine insufficiently permits
the consideration of involuntary manslaughter as to one victim once the other victim’s
killing is determined to constitute murder or voluntary manslaughter, those circumstances
are not the ones we are presented with in this case. In order to have convicted Paredes of
involuntary manslaughter in the killing of Almanza, the jury would have to have
concluded that the act of discharging a firearm repeatedly at an occupied, moving motor
vehicle somehow did not evince a conscious disregard for human life, a conclusion that is
impossible under the circumstances. Trial counsel conceded as much when he argued in
opening statement that his client was guilty of voluntary manslaughter—“the defendant is
not guilty of first degree murder, not guilty of second degree murder, but guilty of
manslaughter based on an imperfect self-defense.”6
To the extent that there was any error
in the court’s amplification of the doctrine in a manner that would rule out a conviction
for involuntary manslaughter for Almanza, it is harmless because an involuntary
manslaughter conviction is inconceivable under these facts. (Chapman v. California
(1967) 386 U.S. 18.)
III. Jury Trial
Paredes was sentenced to the upper term for the voluntary manslaughter of
Almanza because the court found: Almanza was particularly vulnerable; there were
multiple victims; Paredes posed a serious danger to society; he used minors in the
5
Again, it is not certain that the jury relied upon transferred intent to convict
Paredes of the voluntary manslaughter of Almanza, as there was evidence that Almanza
had been known to be in the car and the jury could have concluded that Paredes
committed voluntary manslaughter of Almanza without a transfer of intent.
6
Paredes’s counsel appeared to advocate for a not guilty verdict or involuntary
manslaughter verdict in closing argument despite this very clear statement in his opening
argument.

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commission of the crimes; and he was in a position of leadership. Paredes contends the
trial court’s imposition of an upper term on this count, based on facts neither found by a
jury to be true beyond a reasonable doubt nor admitted by Paredes, violated his right to a
jury trial under Blakely, supra, 542 U.S. 296. Paredes acknowledges that the fact of
multiple victims was in fact found by the jury, as evidenced by the guilty verdicts with
respect to the deaths of both Flores and Almanza, but, citing California Rule of Court
4.425, subdivision (b)(i), argues that this fact could not justify both the upper term and
the imposition of consecutive sentences.
The contention that a defendant’s constitutional right to a jury trial is violated by
the trial court’s identification of aggravating factors and imposition of upper terms was
rejected in People v. Black (2005) 35 Cal.4th 1238, 1244, in which the California
Supreme Court held “the judicial factfinding that occurs when a judge exercises
discretion to impose an upper term sentence or consecutive terms under California law
does not implicate a defendant’s Sixth Amendment right to a jury trial.” The court
explained, “The jury’s verdict of guilty on an offense authorizes the judge to sentence a
defendant to any of the three terms specified by statute as the potential punishments for
that offense, as long as the judge exercises his or her discretion in a reasonable manner
that is consistent with the requirements and guidelines contained in statutes and court
rules.” (Id. at pp. 1257-1258.) Paredes does not contend that the trial court exercised its
discretion in an unreasonable fashion or the sentence imposed on him was inconsistent
with the requirements of the Penal Code or the California Rules of Court. Blakely, supra,
542 U.S. 296, as interpreted by the California Supreme Court in Black, therefore provides
no basis to set aside or modify the sentence.7
We do, however, observe that the United States Supreme Court has granted
certiorari in Cunningham v. California (Apr. 18, 2005, A103501 [nonpub. opn.], cert.
7
See also Washington v. Recuenco (2006) (June 26, 2006, No. 05-83) ___ U.S. ___
[2006 WL 1725561] (failure to submit a sentencing factor to the jury is not structural
error; harmless error analysis is performed on review).

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granted Feb. 21, 2006, ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47]), a case involving
the effect of Blakely, supra, 542 U.S. 296, on California law. We therefore reject
Paredes’s Blakely argument without prejudice to any relief to which he might be entitled
based on the United States Supreme Court’s decision in Cunningham.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ZELON, J.
We concur:
JOHNSON, Acting P. J.
WOODS, J.

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