P. v. Goins

Filed 6/15/18 P. v. Goins CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY GOINS,
Defendant and Appellant.
B281831
(Los Angeles County
Super. Ct. No. GA095841)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Jared D. Moses, Judge. Affirmed.
Mark Yanis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * *

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Defendant and appellant Johnny Goins appeals from his
conviction by jury of the first degree murder of his sister, the
attempted murder of his nephew, and two counts of shooting at
an inhabited dwelling. The jury also found true several firearm
allegations pursuant to Penal Code section 12022.53.1
Defendant was sentenced to state prison for 77 years to life.
Defendant claims various errors in the jury instructions,
contends there is no substantial evidence supporting his
conviction for attempted murder, and argues remand is
warranted in light of the amendment of section 12022.53 during
the pendency of this appeal.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by amended information with one
count of murder (§ 187, subd. (a); count 1), one count of attempted
murder (§ 187, subd. (a), § 664; count 2), and two counts of
shooting at an inhabited dwelling (§ 246; counts 4 & 5).2 It was
alleged as to count 2 that the attempted murder was committed
willfully, deliberately and with premeditation. It was further
alleged as to counts 1 and 2 that defendant personally used and
discharged a firearm in the commission of the offenses within the
meaning of section 12022.53, subdivisions (b) and (c), and as to
all counts that defendant personally used a firearm causing great
bodily injury or death within the meaning of section 12022.53,
subdivision (d).
1 All further undesignated section references are to the Penal
Code.
2 Count 3 (assault with a firearm) was dismissed.

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The case proceeded to trial by jury in February 2017. The
following facts were established by the testimony and evidence
received at trial.
1. The Shooting of March 5, 2015
Tanaya Goins was defendant’s older half sister. In March
2015, Tanaya lived with her 13-year-old son Andre J. and her
longtime boyfriend, Jason Washington, in a one-bedroom
apartment in San Gabriel.3 Because the apartment was small,
Mr. Washington and Tanaya slept on a mattress in the living
room and Andre slept in the bedroom. The front door to the
apartment opened into the living room, and there was a large
window adjacent to the front door.
On March 5, Mr. Washington woke up Tanaya around
6:00 a.m. Tanaya got up and went to the bathroom to take a
shower. Andre had already taken his shower and was getting
dressed for school. Mr. Washington went to use the bathroom
while Tanaya showered. He heard several loud knocks on the
front door which caused their two small dogs to start barking.
Tanaya asked Mr. Washington to quiet the dogs, and said it was
probably Mr. Richard, a neighbor, at the door.
The knocking on the door interrupted Andre getting
dressed. He walked over to the front window and looked out.
Defendant was standing at the door and told Andre, “let me in.”
Andre did not open the door, but walked to the bathroom to let
his mother know “Uncle Johnny” was at the door.
3 Because Andre is a minor, we refer to him only by his first
name and the first initial of his last name to protect his privacy.
Because Ms. Goins shared a common surname with defendant,
we refer to her by her first name only for clarity.

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Tanaya quickly got out of the shower and wrapped a towel
around herself. She looked “concern[ed]” and said “see” to
Mr. Washington as she left the bathroom. About a week earlier,
Tanaya told Mr. Washington that defendant had threatened he
was going to kill her, so she had gotten a gun. She showed the
gun to Mr. Washington and hid it under a cushion in the love
seat in the living room.
Mr. Washington did not immediately follow Tanaya
because he was using the toilet at the time, but Andre followed
his mother into the living room. She went to the window and
opened the blinds. Andre stopped a few feet behind her and stood
on the mattress that was lying on the floor. Tanaya started
yelling loudly at defendant to “get the f away” from their house.
Tanaya was holding the towel with one hand and gesturing with
her other hand at defendant to leave.
From the bathroom, Mr. Washington heard Tanaya yelling
loudly and angrily at defendant: “Johnny, can you please leave.
Johnny, can you please get the f--k out of here. Johnny, can you
please leave, bro.” Mr. Washington did not hear her threaten
defendant in any way.
Mr. Washington thought he heard defendant say, “man”
but did not hear him say anything else. Within seconds, he heard
a loud explosion and saw a flash of light. The noise was so loud
that Mr. Washington was confused and unsure about what had
happened. Andre was also stunned by the sound of the gunshots.
He saw his mother fall to the ground. In the confusion, he did not
realize he had been injured.
Andre was frantic and went to get Mr. Washington from
the bathroom. Mr. Washington saw that Andre had a gash on his
wrist. Mr. Washington quickly walked into the living room. He

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saw several bullet holes in the front window. Tanaya was lying
face up on the floor, her towel dropped at her side. There was
blood all around her head. She did not appear to be breathing.
Mr. Washington did not see anything in her hands or near her
body other than the towel. However, there was a handgun on the
mattress and he saw that one of the seat cushions on the love
seat was pushed up. Andre also had not seen anything in his
mother’s hands before or after the shooting.
Mr. Washington tried to hold and talk to Tanaya, but she
did not respond. He did not want her lying there exposed, so he
placed the towel over her body. He went outside and started
screaming for help. Mr. Washington waited outside “going crazy”
until the police arrived a few minutes later.
Deputy Sheriff Scott Berner and his partner arrived on the
scene and entered the apartment. Deputy Berner saw Tanaya
lying face up on the floor to the left of the front door. He saw a
significant amount of blood, as well as brain matter, near her
head. She appeared to be dead. Deputy Berner saw three bullet
holes in the front window, and another bullet hole in the front
door. He did not see any weapon near Tanaya.
Paramedics arrived, checked on Tanaya’s condition and
pronounced her dead at the scene. Paramedic Shane Sengua was
told there was a second patient to assist. He went to a
neighboring apartment and found Andre, sitting on the couch,
looking dazed. He appeared to have a “graze” gunshot wound to
his wrist. Mr. Sengua bandaged the wound and checked for other
injuries. Andre was thereafter taken to the hospital where a
doctor sutured the wound on his wrist.
Two of Tanaya’s neighbors, Raquel Barron and Carmen
Lopez, told the deputies on the scene what they witnessed that

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morning around 6:30. Both reported seeing a man, later
identified as defendant, dressed in dark pants, a white shirt and
a denim jacket walk from the back of the complex with his hands
in his pockets and go to Tanaya’s apartment.
Ms. Barron reported she had been walking her baby back
and forth in her apartment when she noticed defendant through
the window. When she turned away from the window, she heard
several gunshots (five or six), one right after the other.
Ms. Barron put her baby down and ran back to the window.
She saw defendant running toward the front gate of the
apartment complex. Ms. Barron called 911. While she was on
the phone with the dispatcher, she heard Mr. Washington outside
the apartment yelling “she’s dead.”
Ms. Lopez was doing laundry in the laundry room at the
back of the complex. Through the window of the laundry room,
she saw defendant walk up to Tanaya’s front door. Defendant
knocked on the door, but no one answered. Defendant then
cupped his hands around his eyes, put his face up to the glass,
and peered into the apartment. Tanaya’s dogs began to bark.
Ms. Lopez did not hear anyone talking or yelling, just the dogs
barking.
Ms. Lopez did not recognize defendant as someone who
lived in the complex. Since she had left her front door unlocked,
she walked back to lock her front door. When she walked by
defendant, still standing outside Tanaya’s front door, he turned
away from her. Ms. Lopez locked her door and then walked back
to the laundry room to finish her laundry. Just before she
reached the laundry room door, Ms. Lopez heard five or six
gunshots. Ms. Lopez went into the laundry room and looked out

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the window. She saw defendant running away toward the front
of the apartment complex.
Defendant was arrested later in the evening at the Moreno
Valley shopping mall. The arresting deputy took possession of
defendant’s cell phone.
2. The Events Leading Up to the Shooting
About a year before the shooting, defendant moved in with
S.O. They lived in Moreno Valley with S.O.’s young children from
a prior relationship.
On February 20, 2015, about two weeks before the
shooting, defendant and S.O. were at home in their apartment,
talking. S.O. told defendant he was “nosey.” Defendant got upset
and slapped S.O. hard across the face. It left a mark and her
cheek was slightly swollen. S.O. started screaming. Defendant
shut the window and locked the door. He then grabbed S.O. and
held her down on the bed. He placed his hands over her nose and
mouth, telling her to “shut the f--k up” and calling her a “bitch.”
S.O. had trouble breathing and felt defendant was trying to
suffocate her. She continued to struggle and defendant let her go.
He then left for work. S.O. reported the incident to the police.
S.O. exchanged several text messages with defendant about
the incident, explaining how upset she was because she felt like
he had been trying to kill her “this time.” In one response,
defendant apologized and said he was just trying to make her
stop screaming and was not trying to suffocate her. Later in the
day, the police arrived at defendant’s work place and arrested
him. Defendant was subsequently fired from his job.
Over the ensuing days, S.O. spoke to defendant’s cousin
(Connie Hayes), as well as Tanaya, about the incident.
Defendant got mad at her for talking to Tanaya about what

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happened. Nevertheless, defendant tried to convince S.O. to
continue their relationship. He expressed feelings of depression
about their breakup and the loss of his job over the incident.
They discussed getting back together, but S.O. never agreed to do
so.
Tanaya spoke with her cousin, Ms. Hayes, numerous times
about defendant’s arrest and the “situation” with S.O. and
expressed her concern. Tanaya told her cousin that if defendant
came to her house it would not be to talk, but to kill her.
During this same time period, Tanaya also spoke to her
longtime friend, Jazmine Harris. Tanaya expressed concern
about the tension that had developed between her and defendant
over his assault of S.O. A few days before the shooting, Tanaya
sent a text message to Ms. Harris telling her that defendant was
“crazy,” and that things were getting “really bad.” Ms. Harris
told her to call the police. Tanaya texted her back: “I can call the
police but how can I do that after I’m dead, he better not go to my
house.” She said she did not want to wait to see what he was
going to do. Tanaya, apparently referencing a funeral, said there
was going to be “slow singing and flower bringing.” Ms. Harris
told Tanaya to tell defendant to meet her and then have the
police with her for the meeting. Ms. Harris was not aware
Tanaya had purchased a gun.
3. Other Evidence
An autopsy confirmed Tanaya suffered two fatal gunshot
wounds: one to her head and one through her upper torso. Both
entrance wounds were on the right side of her body. A
toxicology report revealed small quantities of marijuana and
methamphetamine in her system at the time of her death.

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Anny Wu, a senior criminalist with the Los Angeles County
Sheriff’s Department, examined the bullet holes in the front
window and door of Tanaya’s apartment. Among other things,
she confirmed that all four bullet holes resulted from the firing of
a gun from the outside of the apartment into the apartment (none
were shot from inside the apartment).
Detective David Gunner attested to his investigation of the
shooting. He verified information extracted from defendant’s cell
phone which had been seized at the time of his arrest. One text
message from the phone was sent on February 27, 2015, and said
“You got burner for sale.” In Detective Gunner’s experience, a
burner is a common term for a gun.
The day after defendant sent the text asking for a burner,
defendant created a video on his cell phone which he later posted
to Facebook. The video was played for the jury. In it, defendant
apologized to S.O., expressed his love for her and made several
other statements. In one portion, defendant referred to Tanaya
as a “bitch,” who wanted to see his “downfall,” provoked him just
to get him to react, and called him a narcissist who did not like
“dark-skinned girls.”
S.O. testified that defendant called her on the morning of
the shooting, sometime before 8:00. while she was getting her
children ready for school. S.O. was unaware of the shooting at
that time, and defendant did not say anything about it to her.
Defendant told her he was upset because Tanaya had spoken
poorly of him to his cousin and his cousin did not want him
coming over to her house anymore. Defendant drove to S.O.’s
apartment that morning and gave her some money. S.O.
understood he wanted her to have the money because he was
“turning [himself] in” on the domestic violence charge since he

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was not able to pay the bail bond company in full. She learned
later in the day that Tanaya had been shot.
4. Defense Evidence
Defendant testified and explained that he had a difficult
childhood. He said that he and Tanaya had the same mother, but
different fathers. They were raised by their mother because both
men were in prison when they were growing up. When he was
young, he witnessed numerous domestic violence incidents
against his mother by various boyfriends, some of which involved
gun use. He was also shot at in a drive-by shooting. Defendant
said his mother physically abused him as a child, that he was
removed from his mother’s care for a period of time and lived
with relatives on and off.
Defendant said he stopped talking to Tanaya in 2014 when
he started dating S.O. because Tanaya believed he had cheated
on a friend of hers to be with S.O., which was not true.
With respect to the domestic violence incident with S.O. on
February 20, 2015, defendant admitted he slapped her in the face
because he got upset that she insinuated he was “nosey.” He said
she tried to hit back at him and began screaming at the “top of
her lungs” so he threw her down onto the bed and tried to get her
to stop screaming. He admitted he put his hand over her mouth
to quiet her. He did not want the neighbors or her kids to hear
her screaming like that. Defendant explained that is why he
shut the door and the window. He said he had no intent to hurt
her or suffocate her. Defendant said he apologized to S.O. and
then went to work.
Defendant said he was later arrested while at work which
caused him to be fired from his job. He was very upset about that
because he had worked there for almost 10 years. Defendant

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posted bail and was released, but then he found out Tanaya had
spoken to S.O. He did not like his sister knowing his personal
business. Tanaya sent him a text saying she was angry at him
about the incident and that it was wrong to blame their mother
for allegedly hitting him when he was a child. Defendant was
angry and blocked and erased Tanaya’s number from his cell
phone. Defendant explained he then started getting calls from
the bail bond company about payment and it stressed him out
because he did not have the money to pay them and had lost his
job.
Defendant said he had never owned a gun in his entire life,
but after the incident with S.O., he started getting threatening
phone calls and threats on Facebook, including one from S.O.’s
brother. He therefore bought a gun for protection. He denied he
bought the gun to kill Tanaya. He did however carry the gun
around with him all the time because he feared for his life.
Defendant admitted that during this same time period, he
exchanged various texts with his mother, including one that said:
“Keep playin, it’s funny now, you gone [sic] be crying later. I
promise.” He explained that he was “having words” with his
mother and he was trying to tell her that people would learn the
truth about her calling him a liar and trying to “sweep under the
rug” her abuse of him when he was young.
Defendant made the video on his cell phone to set the
record straight about what had happened in his childhood and
what happened with S.O. on February 20. He did not post it
right away because he was busy with other things.
Defendant denied knowing Tanaya had purchased a gun or
that she had been saying she feared he was going to try to kill

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her. He said he did not know whether she used drugs, but knew
she would sometimes smoke marijuana.
Defendant went over to Tanaya’s house on March 5 to talk
to her about everything that was going on. He was going to turn
himself in on the domestic violence charge and did not know
when he would be able to talk to her later. Because he had
erased her information from his phone a few days before, he could
not just call Tanaya so he decided to go see her in person. He
denied he went to the apartment with the intent to kill his sister.
When he arrived at Tanaya’s apartment complex that
morning, the front security gate was locked so he went around
through the back. He knew how to get in that way because
Mr. Washington had shown him how to do it when he used to
stay over with them sometimes. Defendant knocked on Tanaya’s
door. His nephew, Andre, came to the window and looked out.
Defendant told him to get his mother. He then heard yelling
from inside the apartment and the dogs barking.
Tanaya did not open the door but appeared at the window
with a gun in her hand. She looked really mad, but did not say or
yell anything at him. It all “happened fast” but defendant took
the gun from his pocket and shot towards the window.
After he shot several times, defendant ran out of the
apartment complex and drove to Moreno Valley to see S.O. When
he got to her apartment, he told her he was going to turn himself
in and gave her some money. He then left and went to Wendy’s.
At some point, he posted the video he had made to Facebook
because he knew he would be going to jail. He also sent several
text messages to a few friends and family members. Defendant
admitted he said nothing in those messages about having shot at
Tanaya because she pointed a gun at him first. He also admitted

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that when the detectives interviewed him after his arrest, he
never told them that Tanaya had pointed a gun at him. He told
the police he threw his gun away after he left Tanaya’s
apartment.
Defendant presented the expert testimony of Dr. Kevin
Booker, a trauma specialist. Dr. Booker offered his opinion that
defendant suffered from severe, chronic posttraumatic stress
disorder as a result of a history of exposure to violence,
particularly in childhood. He also suffered from major depressive
disorder and substance abuse disorder, but the substance abuse
was in full remission. Dr. Booker opined that as a result of these
disorders, defendant exhibited hypervigilance. Individuals who
suffer from such disorders tend to be paranoid and often
overreact to perceived threats.
5. The Verdict and Sentencing
The jury found defendant guilty of the first degree murder
of Tanaya (count 1), the attempted premeditated murder of
Andre (count 2), and two counts of shooting at an inhabited
dwelling (counts 4 & 5). As to counts 1 and 2, the jury found true
the firearm use allegations pursuant to section 12022.53,
subdivisions (b) and (c). The jury also found true the allegations
as to counts 1 and 4 that defendant personally used and
discharged a firearm causing great bodily injury pursuant to
section 12022.53, subdivision (d). They found not true the
allegation that defendant had inflicted great bodily injury on
Andre.
The court sentenced defendant to a state prison term of
77 years to life, calculated as follows: 25 years to life on count 1,
plus a consecutive term of 25 years to life for the firearm
enhancement pursuant to section 12022.53, subdivision (d); a

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term of life on count 2 with a minimum parole eligibility of seven
years, plus a consecutive term of 20 years to life for the firearm
enhancement pursuant to section 12022.53, subdivision (c). The
court imposed and stayed the sentences on counts 4 and 5 and
the remaining firearm enhancements. The court awarded
763 days of custody credits (actual days/no conduct credits), and
made further orders not at issue in this appeal.
This appeal followed.
DISCUSSION
1. There Were No Instructional Errors
Defendant raises three challenges to the jury instructions.
We conclude none has merit.
a. CALJIC No. 5.42
The trial court thoroughly and correctly instructed, as
requested by the parties, on the law pertaining to self-defense
and imperfect self-defense, including CALJIC Nos. 5.12, 5.15,
5.17, 5.30, 5.50, 5.51, 5.52, 5.55 and 8.50.
Over defendant’s objection, the court further instructed
with CALJIC No. 5.42 as follows: “A person may defend her
home or dwelling against anyone who manifestly intends or
endeavors in a violent or riotous manner, to enter that home or
dwelling and who appears to intend violence to any person in
that home or dwelling. The amount of force which the person
may use in resisting the trespass is limited by what would appear
to a reasonable person, in the same or similar circumstances,
necessary to resist the violent or unlawful entry. She is not
bound to retreat even though a retreat might safely be made.
She may resist force with force, increasing it in proportion to the
intruder’s persistence and violence if the circumstances which are

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apparent to the lawful occupant of the property are such as would
excite similar fears and a similar belief in a reasonable person.”4
Defendant contends it was error to give CALJIC No. 5.42
because it is intended to apply to a defendant’s right to self-
defense in his or her home, not a victim’s. Defendant argues the
use of the instruction on the facts here improperly shifted the
jury’s focus away from the correct inquiry, namely, whether
defendant reasonably believed in the need to use force to defend
against an imminent threat of death or great bodily injury. In
substance, defendant argues Tanaya’s belief in the need to use
force to defend herself from him was irrelevant.
This same argument on substantially similar facts was
rejected in People v. Watie (2002) 100 Cal.App.4th 866 (Watie). In
Watie, the defendant was convicted of voluntary manslaughter
for the shooting death of the victim following a confrontation
between the two men on the front porch of the victim’s home. (Id.
at pp. 873-874.) The trial court instructed on the law pertaining
to self-defense, imperfect self-defense and on the defense of a
dwelling, including CALJIC No. 5.42. (Watie, at pp. 876-877.)
On appeal, the defendant argued it was error to instruct on the
4 The court also instructed with CALJIC No. 5.43 (a related
instruction on defense of a dwelling) which defendant does not
challenge: “When conditions are present which, under the law,
justify a person in using force in defense of property, that person
may use that degree and extent of force as would appear to a
reasonable person, placed in the same position, and seeing and
knowing what the resisting person then sees and knows, to be
reasonably necessary to prevent imminent injury threatened to
the property. Any use of force beyond that limit is excessive and
unjustified, and anyone using excessive force is legally
responsible for the consequences thereof.”

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defense of a dwelling because it was irrelevant to resolving the
merit of his self-defense claim and likely confused the jury. (Id.
at p. 876.)
In concluding there was no instructional error, Watie
explained, “the jury was confronted with the question of whether
defendant’s use of deadly force was justified as he confronted [the
victim] on the front porch of [the victim’s] home and whether
defendant’s unlawful conduct created the circumstances that
legally justified [the victim’s] use of force. If [the victim] had a
right to use force to defend himself in his home, then defendant
had no right of self-defense, imperfect or otherwise. The court’s
instructions on [the victim’s] rights and defendant’s right to turn
to deadly force correctly stated the law.” (Watie, supra, 100
Cal.App.4th at p. 878.) In so holding, Watie cited to two similar
cases that also reasoned a victim’s right of defense in the home is
a relevant consideration in resolving a defendant’s claim of self-
defense or imperfect self-defense: People v. Gleghorn (1987) 193
Cal.App.3d 196 and People v. Hardin (2000) 85 Cal.App.4th 625.
Defendant acknowledges Watie, but urges us to reject it,
contending it is at odds with People v. Minifie (1996) 13 Cal.4th
1055 (Minifie). Defendant cites Minifie for the proposition that
the law of self-defense is not focused on the victim’s acts and
intent, but rather on whether the defendant acted reasonably in
the face of a perceived threat of force. (Minifie, at p. 1068.) This
is an accurate principle of law, but defendant’s reliance on
Minifie is nonetheless unavailing.
Minifie and Watie are not at odds. Minifie did not address
the propriety of CALJIC No. 5.42 or any jury instruction for that
matter, nor did it factually involve an altercation in a home.
Minifie involved two patrons at a bar. The defendant had

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previously killed the victim’s friend. The victim confronted the
defendant when he came into the bar and punched him. The
defendant in turn pulled a gun, and took several shots at the
victim both inside the bar and outside as the victim fled.
(Minifie, supra, 13 Cal.4th at pp. 1060-1061.)
The defendant in Minifie sought to introduce evidence that
several friends and family of the man he had killed had
threatened him and his wife. He argued that evidence of those
third party threats was relevant to show his fear of the victim
based on his status as a member of that group of friends, even if
the victim had not personally threatened him. (Minifie, supra, 13
Cal.4th at pp. 1061-1063.) Minifie concluded the third party
threat evidence was admissible on the reasonableness of the
defendant’s fear. (Id. at pp. 1064-1069.) Minifie says nothing
about the propriety of instructing on the defense of a dwelling in
conjunction with instructing on self-defense when the defendant
has attacked someone in their own home because no such issue
was presented in that case.
Here, the evidence involved a confrontation between
defendant and Tanaya, while Tanaya was inside her home. The
evidence warranted the giving of CALJIC No. 5.42, in addition to
the other instructions related to self-defense. CALJIC No. 5.42 is
a correct statement of the relevant law and applied to the facts in
this case. It did not misdirect the jury or operate to compel them
to find defendant’s claim of self-defense was precluded. Indeed,
the jury was specifically instructed that “[w]hether some
instructions apply will depend upon what you find to be the facts.
Disregard any instruction which applies to facts determined by
you not to exist.” And, the instructions on self-defense
admonished the jury that “a killing is lawful if it was justifiable,”

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that the prosecution had the burden to prove beyond a reasonable
doubt that the killing was unlawful, and that if the jury had “a
reasonable doubt that the homicide was unlawful, you must find
the defendant not guilty.”
b. Sudden quarrel/heat of passion
Defendant next contends the court erred in failing to
instruct on the lesser included offense of voluntary manslaughter
based on sudden quarrel or heat of passion.
“ ‘ “The trial court is obligated to instruct the jury on all
general principles of law relevant to the issues raised by the
evidence, whether or not the defendant makes a formal request.” ’
[Citation.] ‘Conversely, even on request, the court “has no duty to
instruct on any lesser offense unless there is substantial evidence
to support such instruction.” ’ [Citation.] This substantial
evidence requirement is not satisfied by ‘ “any evidence . . . no
matter how weak,” ’ but rather by evidence from which a jury
composed of reasonable persons could conclude ‘that the lesser
offense, but not the greater, was committed.’ [Citation.] ‘On
appeal, we review independently the question whether the trial
court failed to instruct on a lesser included offense.’ ” (People v.
Avila (2009) 46 Cal.4th 680, 704-705 (Avila), first italics added.)
Here, the court instructed on the lesser included offense of
voluntary manslaughter based on imperfect self-defense, but not
on sudden quarrel/heat of passion. “Imperfect self-defense, which
reduces murder to voluntary manslaughter, arises when a
defendant acts in the actual but unreasonable belief that he is in
imminent danger of death or great bodily injury. [Citations.]
Heat of passion, which likewise reduces murder to voluntary
manslaughter, arises when the defendant is provoked by acts
that would ‘render an ordinary person of average disposition

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“liable to act rashly or without due deliberation and reflection,
and from this passion rather than from judgment” ’ [citation] and
kills while under the actual influence of such a passion.” (People
v. Duff (2014) 58 Cal.4th 527, 561-562 (Duff).)
Defendant’s own testimony belies any claim that an
instruction on sudden quarrel/heat of passion was warranted.
Defendant testified he heard yelling inside the apartment after
he knocked, as well as the dogs barking, but he did not hear
Tanaya say anything or yell anything at him. She said nothing
to him when she came to the window. He testified she came to
the window looking very angry and pointing a gun at him, so he
shot at her and ran away. According to defendant, it happened
that quickly and there was no discussion, argument, or back and
forth interaction between the two as erroneously suggested in
defendant’s opening brief.
None of the prosecution’s evidence supported an instruction
on sudden quarrel/heat of passion either. Both Mr. Washington
and Andre denied Tanaya had anything in her hand, let alone a
gun, when she went to the window. Indeed, according to their
testimony, one of her hands was occupied with holding up her
towel. Both Mr. Washington and Andre said Tanaya angrily
yelled at defendant to leave, but otherwise did not engage in
threatening or provocative behavior toward defendant. The
medical examiner testified the entrance wounds on Tanaya’s
body were on her side, indicating she was likely turning away
from the window when she was shot, not facing forward in a
confrontational manner as defendant now claims. Both of the
neighbors testified the shooting happened quickly, with five to six
shots occurring in rapid succession. Neither of them heard any
arguing beforehand. Such evidence supported the instruction on

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imperfect self-defense (as well as defendant’s claim of self-
defense), but not sudden quarrel/heat of passion.
People v. Moye (2009) 47 Cal.4th 537 is instructive. The
defendant there also argued the trial court erred by failing to
instruct on voluntary manslaughter based on sudden
quarrel/heat of passion. Like defendant here, the defendant in
Moye testified in his own defense. In concluding there was no
instructional error, the Supreme Court pointed to the defendant’s
own testimony: “[A]ccording to defendant, he responded to [the
victim’s] attack with the baseball bat by grabbing the bat from
him and using it to defend himself from [the victim’s] continuing
advances. The thrust of defendant’s testimony, in every
particular, was that he approached [the victim] with peaceful
intentions . . . intending to talk things out and resolve any
lingering hostility that might have carried over from the previous
evening’s altercation.” (Id. at pp. 553-554.) The defendant’s
testimony was that he was surprised by the victim suddenly
turning on him with a baseball bat and he therefore responded
immediately in self-defense. (Ibid.; accord, Duff, supra, 58
Cal.4th at pp. 535-536 [evidence that the defendant told police
the victims surprised him by pulling guns on him so he shot in
self-defense did not warrant an instruction on sudden
quarrel/heat of passion].)
c. CALJIC No. 8.66.1
Defendant’s final challenge to the jury instructions pertains
to CALJIC No. 8.66.1 on the kill zone theory. Defendant
contends the instruction incorrectly stated the law, allowing the
jury to find him guilty of the attempted murder of Andre under a
kill zone theory without finding he acted with the intent to kill
Andre.

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Respondent argues this contention has been forfeited
because defendant did not object or otherwise seek a clarification
of the instruction in the trial court. “A trial court has no sua
sponte duty to revise or improve upon an accurate statement of
law without a request from counsel [citation], and failure to
request clarification of an otherwise correct instruction forfeits
the claim of error for purposes of appeal.” (People v. Lee (2011) 51
Cal.4th 620, 638; accord, People v. Jones (2013) 57 Cal.4th 899,
969 [a “ ‘party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying
or amplifying language’ ”].)
Defendant concedes no objection or request for modification
was made to the trial court, but argues the contention is properly
reviewed under section 1259 because the defective instruction
violated his substantial rights. He contends the instruction
lowered the prosecution’s burden of proof by expanding the
liability for attempted murder to include implied malice. He also
claims the court had a duty to properly instruct on the law
relative to the burden of proof and the elements of the crime,
including intent.
We are not persuaded the alleged defect in the instruction
impacted defendant’s substantial rights. Defendant at most
articulates an argument that the instruction was ambiguous as
to the intent required for persons in the kill zone as opposed to
the primary target. Such ambiguity could have been addressed
in the trial court with a request for modification. Defendant’s
contention is therefore forfeited. (See People v. Campos (2007)
156 Cal.App.4th 1228, 1236 [failure to seek clarification of

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alleged ambiguity in kill zone language of CALCRIM No. 600
forfeited contention on appeal].)
In any event, to the extent there is any ambiguity in the
instruction, any prejudice arising from that ambiguity was
harmless by any standard.
The jury was instructed with CALJIC No. 8.66.1 as follows:
“A person who primarily intends to kill one person, known as the
primary target, may – at the same time – attempt to kill all
people – in the immediate vicinity of the primary target. This
area is known as the ‘kill zone.’ – A kill zone is created when a
perpetrator specifically intending to kill the primary target by
lethal means also attempts to kill anyone in the immediate
vicinity of the primary target. If the perpetrator has this specific
intent, and employs the means sufficient to kill the primary
target and all others in the kill zone, the perpetrator is guilty of
the crime of attempted murder of the other person in the kill
zone. [¶] Whether a perpetrator actually intended to kill the
victim, either as a primary target or as someone within a ‘kill
zone’ is an issue to be decided by you.”
The instruction is consistent with the kill zone theory of
concurrent intent described by the Supreme Court in People v.
Bland (2002) 28 Cal.4th 313, 329-330 (Bland): “[T]he fact [a
defendant] desire[d] to kill a particular target does not preclude
finding that the [defendant] also, concurrently, intended to kill
others within . . . the ‘kill zone.’ ‘The intent is concurrent . . .
when the nature and scope of the attack, while directed at a
primary victim, are such that we can conclude the perpetrator
intended to ensure harm to the primary victim by harming
everyone in that victim’s vicinity. . . . For example, . . . a
defendant who intends to kill A and, in order to ensure A’s death,

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drives by a group consisting of A, B, and C, and attacks the group
with automatic weapon fire or an explosive device devastating
enough to kill everyone in the group. . . . When the defendant
escalated his mode of attack from a single bullet aimed at A’s
head to a hail of bullets or an explosive device, the factfinder can
infer that, whether or not the defendant succeeded in killing A,
the defendant concurrently intended to kill everyone in A’s
immediate vicinity to ensure A’s death. . . . Where the means
employed to commit the crime against a primary victim create a
zone of harm around that victim, the factfinder can reasonably
infer that the defendant intended that harm to all who are in the
anticipated zone.’ ”
Defendant contends the instruction does not require the
jury to find a specific intent to kill others in the kill zone which is
required for attempted murder. But the concluding sentence of
the instruction specifically instructed the jury that whether
defendant “actually intended to kill the victim, either as a
primary target or as someone within a ‘kill zone’ is an issue to be
decided by you.”
Moreover, the instructions setting forth the elements of
attempted murder, including CALJIC Nos. 3.31 and 8.66, clearly
instructed the jury that attempted murder requires evidence of
express malice or an intent to kill. And, CALJIC No. 2.02 told
the jury that “if the evidence as to any specific intent or mental
state permits two reasonable interpretations, one of which points
to the existence of the specific intent or mental state and the
other to its absence, you must adopt that interpretation which
points to its absence.”
“In reviewing a claim of instructional error, the ultimate
question is whether ‘there was a reasonable likelihood the jury

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applied the challenged instruction in an impermissible manner.’
[Citation.] ‘[T]he correctness of jury instructions is to be
determined from the entire charge of the court, not from a
consideration of parts of an instruction or from a particular
instruction.’ [Citation.] ‘Moreover, any theoretical possibility of
confusion [may be] diminished by the parties’ closing
arguments . . . .’ [Citation.] ‘ “ ‘Jurors are presumed to be
intelligent, capable of understanding instructions and applying
them to the facts of the case.’ ” ’ ” (People v. Hajek and Vo (2014)
58 Cal.4th 1144, 1220, overruled in part on other grounds as
stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216; accord,
People v. Richardson (2008) 43 Cal.4th 959, 1028.)
2. Substantial Evidence Supports the Attempted
Murder Conviction
Defendant contends his conviction in count 2 for the
attempted premeditated murder of Andre is not supported by
substantial evidence. We disagree.
“ ‘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 determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so doing, a
reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’ ” (Avila, supra, 46 Cal.4th at p. 701.)

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Attempted murder requires evidence establishing express
malice or the specific intent to kill. (People v. Lee (2003) 31
Cal.4th 613, 623.) Defendant argues the evidence did not
demonstrate a specific intent to kill Andre under a kill zone
theory, or otherwise. He contends the evidence established, at
most, implied malice or depraved indifference, neither of which
supports an attempted murder conviction.
“ ‘[I]t is well settled that intent to kill or express malice, the
mental state required to convict a defendant of attempted
murder, may . . . be inferred from the defendant’s acts and the
circumstances of the crime.’ ” (Avila, supra, 46 Cal.4th at p. 701.)
“ ‘There is rarely direct evidence of a defendant’s intent. Such
intent must usually be derived from all the circumstances of the
attempt, including the defendant’s actions.’ ” (People v. Smith
(2005) 37 Cal.4th 733, 741 (Smith).)
Of particular relevance here, “the act of purposefully firing
a lethal weapon at another human being at close range, without
legal excuse, generally gives rise to an inference that the shooter
acted with express malice.” (Smith, supra, 37 Cal.4th at p. 742;
accord, People v. Houston (2012) 54 Cal.4th 1186, 1218 [the “act
of shooting a firearm toward a victim at close range in a manner
that could have inflicted a mortal wound had the shot been on
target is sufficient to support an inference of an intent to kill . . .
attempted murder does not necessarily require a specific
target”].)
In Smith, the defendant shot a single round at close range
through the back window of a vehicle where his ex-girlfriend was
seated in the driver’s seat and her newborn baby was seated in a
car seat directly behind her. (Smith, supra, 37 Cal.4th at pp.
742-743.) The bullet narrowly missed both victims by a few

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inches. (Id. at p. 743.) The defendant was convicted of the
attempted murder of both victims. The Supreme Court rejected
the defendant’s substantial evidence challenge, concluding the
evidence was sufficient to support a specific intent to kill both the
baby and the mother. (Id. at pp. 743-747; see also People v.
Chinchilla (1997) 52 Cal.App.4th 683, 691 [sufficient evidence of
express malice as to both victims where the defendant fired one
shot at close range toward two police officers crouched next to
each other].)
Here, defendant arrived at Tanaya’s apartment with a
loaded gun, knowing the small size of the apartment, and
knowing Andre was home and had just come to the window in
response to his knocking on the door. Tanaya came to the
window immediately thereafter and opened the blinds. Andre
was standing just behind her. Defendant was standing outside
the window and had been seen peering into the window. From
this vantage point, defendant fired multiple shots, at close range,
through the window into the living room, striking both Tanaya
and Andre. Viewing this evidence in the light most favorable to
the judgment, and presuming every fact the jury could
reasonably infer from such evidence, we conclude the evidence
was sufficient to support an intent to kill Andre.
Even if we assume defendant did not see that Andre had
remained in the living room near his mother, the evidence
nonetheless supports the attempted murder conviction under a
kill zone theory. Evidence demonstrating concurrent intent
under a kill zone theory, as argued by the prosecution here, is
another way in which the requisite intent may be established.
Concurrent intent is “a reasonable inference the jury may draw
in a given case: a primary intent to kill a specific target does not

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rule out a concurrent intent to kill others.” (Bland, supra, 28
Cal.4th at p. 331, fn. 6.)
The evidence amply supports the finding that defendant
created a kill zone in the close quarters of the living room by the
manner in which he chose to shoot at Tanaya multiple times at
close range, sufficient to raise an inference of a concurrent intent
to kill anyone standing nearby. “Whether or not the defendant is
aware that the attempted murder victims were within the zone of
harm is not a defense, as long as the victims actually were within
the zone of harm.” (People v. Adams (2008) 169 Cal.App.4th
1009, 1023.)
3. The Firearm Enhancements
Finally, defendant argues that even if his conviction is
affirmed in whole or in part, remand for resentencing on the
firearm enhancements pursuant to section 12022.53 is warranted
because of the amendment to the statute that took effect during
the pendency of this appeal. We conclude remand is not
warranted.
On January 1, 2018, Senate Bill No. 620 (2017–2018 Reg.
Sess.) took effect, which amended section 12022.53, subdivision
(h), removing the prohibition against striking the firearm
enhancements under section 12022.53. The amendment grants
trial courts discretion to strike or dismiss an enhancement under
section 12022.53. (Stats. 2017, ch. 682, § 2.)
The discretion to strike a firearm enhancement under
section 12022.53 may be exercised as to any defendant whose
conviction is not final as of the effective date of the amendment.
(See In re Estrada (1965) 63 Cal.2d 740, 742-748; People v. Brown
(2012) 54 Cal.4th 314, 323; see also, People v. Vieira (2005) 35
Cal.4th 264, 305-306 [“a defendant generally is entitled to benefit

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from amendments that become effective while his case is on
appeal”]; People v. Smith (2015) 234 Cal.App.4th 1460, 1465 [“[a]
judgment becomes final when the availability of an appeal and
the time for filing a petition for certiorari have expired”]; Bell v.
Maryland (1964) 378 U.S. 226, 230 [“[t]he rule applies to any
such [criminal] proceeding which, at the time of the supervening
legislation, has not yet reached final disposition in the highest
court authorized to review it”].)
It is undisputed defendant’s appeal was not final as of
January 1, 2018, when the amendment took effect.
Respondent relies on People v. Gutierrez (1996) 48
Cal.App.4th 1894 (Gutierrez) to argue remand is unwarranted
because there is no reasonable possibility the court would
exercise its new discretion to strike the firearm enhancement. In
Gutierrez, the trial court sentenced the defendant to the
maximum possible sentence, which included an enhancement for
a prior strike conviction and two other discretionary
enhancements. (Id. at p. 1896.) While the defendant’s appeal
was pending, the Supreme Court held that trial courts have
discretion to strike prior convictions under the “Three Strikes”
law in the furtherance of justice. The Court of Appeal, however,
declined to remand for resentencing, reasoning it was obvious the
trial court would not exercise its newfound discretion given it
increased the defendant’s sentence beyond what it believed was
required by the Three Strikes law and stated the maximum
sentence was appropriate. (Id. at p. 1896.)
Similarly here, the court rejected defendant’s request for
concurrent sentencing on counts 1 and 2 and imposed the
maximum sentence. The court stated it found defendant’s crimes
to be “particularly cruel and cowardly” and emphasized its

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dismay that defendant continued to refuse to take responsibility
for his actions in claiming, even in his statement at the
sentencing hearing, that he never meant to hurt anyone. “He put
one bullet into Tanaya’s head, right through her brain, he put one
bullet right through her torso, right into her heart, shot her at
close range right through her door. Didn’t have the courage
apparently, to do it face to face looking at her, instead he hid
behind the door and shot through the door. A terribly cruel and
cowardly crime.”
The court also remarked on its concern for the surviving
victim, Andre, based in part on the way he presented himself on
the witness stand: “a very flat affect. To me that is a very
troubling sign. It shows somebody who has been deeply[,] deeply
traumatized. And I think at this point, has probably not even
begun to deal with the extent of the trauma that has been
inflicted upon him and will certainly haunt him for his entire
life.”
The court reiterated that the crimes committed were
particularly cruel, that the jury had “soundly rejected” all of
defendant’s excuses, and the jury’s verdict “was well supported by
the evidence.”
Based on all of those considerations, the court imposed
consecutive maximum terms on both counts 1 and 2, explaining
“these are separate crimes of violence as to separate victims. And
as I said before given the cruelty and the cowardliness of these
crimes I believe consecutive sentence[s] are appropriate.”
The court advised defendant of his appellate rights and
asked if he understood those rights. Defendant responded, “f--k
you, f--k you.” After the court stated that was “certainly
consistent” with his behavior during trial and in his life,

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defendant again cursed at the court. The court concluded the
proceedings noting that the “record should reflect [defendant] spit
on me and it hit my head.”
On this record, we conclude that remand would be futile, as
it is not reasonably likely the court would exercise its discretion
to reduce defendant’s sentence under the amended version of the
statute. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
ROGAN, J.*
* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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