P. v. Escobar

Filed 3/1/17 P. v. Escobar CA2/3
Opn after rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN LEONIDES ESCOBAR et al.,
Defendants and Appellants.
B259309
(Los Angeles County
Super. Ct. No. TA127185)
APPEAL from judgments of the Superior Court of Los
Angeles County, Ricardo R. Ocampo, Judge. Affirmed in part,
vacated in part, and remanded with directions.
Wegman & Levin, Debra J. Wegman and Michael M. Levin
for Defendant and Appellant Jonathan Leonides Escobar.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant Jorge Gutierrez.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________

-- 1 of 35 --

2
Appellants Jonathan Leonides Escobar and Jorge Gutierrez
appeal from the judgments entered after a jury convicted each of
them on two counts of attempted willful, deliberate, and
premeditated murder (counts 1 & 2) and on count 3 – shooting
from a motor vehicle. On each of counts 1 and 2, as to Escobar,
the jury found a principal personally and intentionally
discharged a firearm causing great bodily injury. On each of
counts 1 and 2, as to Gutierrez, the jury found he personally and
intentionally discharged a firearm, and personally and
intentionally discharged a firearm causing great bodily injury.
On count 3, as to Gutierrez, the jury found he personally used a
firearm. The jury also found, as to each appellant on each of the
above counts, the offense was committed for the benefit of, at the
direction of, or in association with, a criminal street gang. (Pen.
Code, §§ 186.22, subd. (b)(1), 664, 187, 12022.5, 12022.53, subds.
(c), (d) & (e)(1) & 26100, subd. (c).1) The court sentenced each
appellant to prison for 80 years to life. We vacate appellants’
sentences and remand for resentencing, but otherwise affirm.
1 Unless otherwise indicated, subsequent section references
are to the Penal Code.

-- 2 of 35 --

3
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa)), the
evidence established that in February 2013, 17-year-old Justin
Padilla (Justin)2 lived in an apartment at Grand and Imperial
Highway in Los Angeles. About 9:00 p.m. on February 27, 2013,
Justin and his friend Diego Fernandez (Diego) were playing in
the backyard. Neither Justin nor Diego was a gang member.
A Toyota automobile drove up and stopped 21 feet from
Justin and 29 feet from Diego. The Toyota’s passenger side was
closest to Justin and Diego. The car contained two Hispanic men
and the passenger had a scarf or bandana covering his mouth.
The car’s front passenger window was down. The passenger
asked Justin and Diego, “Where you fools from?” Justin believed
the question was a gang challenge. Justin did not pull out a
weapon and he never saw Diego pull out one. The passenger
began shooting. Justin heard eight or 10 shots and ran towards
the apartment building. A bullet struck Justin in the ankle and
he fell. Another bullet struck Justin in the buttocks. Justin rose
and entered his apartment. As Diego was running, he heard
multiple gunshots but not more than 15. Diego was not hit by
gunfire. However, the prosecutor asked if Diego could hear
“bullets hitting anything around [Diego]” and Diego replied, “Yes,
the gate.” The bullet made a hole in the gate. Diego heard Justin
2 To avoid confusion with other witnesses having the same
last name as the victims, we refer to both victims by their first
names.

-- 3 of 35 --

4
falling behind him. Diego turned back to go to Justin as shots
were fired.3 The Toyota drove away.
Justin and Diego testified in particular concerning various
photographs (People’s exh. Nos. 1 – 4, 6 – 8, and 14), depicting
the shooting scene and admitted into evidence, as follows. The
photographs depicted the backyard in which Justin and Diego
were playing. People’s exhibit No. 4 depicted the backyard as it
looked that evening. Justin, using his initials “JP,” marked on
People’s exhibit No. 4 where he was standing when he saw the
car. He also, using the initials “DF,” marked where Diego was
standing when the car pulled up and Justin heard the question,
“Where you guys from?” Justin drew a rectangle on People’s
exhibit No. 4 to represent where the car stopped. Diego, using
the initials “JP” and “DF,” marked on People’s exhibit No. 6
(apparently a duplicate of People’s exh. No. 4) where Justin and
Diego, respectively, were when Diego saw the car. Diego drew a
circle on People’s exhibit No. 6 to represent where the car
stopped.
Justin testified he ran “to the back of the house,” then “on
the side,” and he drew arrows on a photograph (People’s exh. No.
2) to represent where he ran. Diego testified he ran to the side of
the house when the shooting started and a photograph (People’s
exh. No. 7) depicted where he ran. He heard bullets hitting the
gate and testified a photograph (People’s exh. No. 7) depicted the
3 During the People’s direct examination of Diego, the
following occurred: “Q So if I understand you, there were shots
fired and you ran? [¶] . . . [¶] A Yes. [¶] Q Okay. And you
hear somebody fall at that point -- [¶] A Yes. [¶] Q -- while
you’re running? [¶] A Yes. [¶] Q And that’s when you turned
back to go to your friend? [¶] Q Yes.” (Italics added.)

-- 4 of 35 --

5
gate. After the shooting, he looked at the gate and saw a bullet
hole in it as depicted in a photograph (People’s exh. No. 8). The
bullet hole is in the south portion of the gate.
Los Angeles Police Officer Billy Lee was off-duty and
driving his personal car on Grand when he heard shooting. He
heard six to eight more shots and saw muzzle flashes coming
from the front passenger window of a Toyota about 130 to 150
feet in front of him in the southbound curb lane. The front
passenger was shooting in a westerly direction towards an
apartment complex on the northwest corner of Grand and
Imperial Highway. Lee saw a person’s arm and hand extending
out the window and the hand was holding a firearm. After the
shooting, the Toyota sped away.
Lee called 911 and followed the Toyota. Lee, later assisted
by Los Angeles Police Officers Gil Padilla and Phillip Sudario in a
patrol car, engaged in a high speed pursuit of the Toyota. During
the pursuit, the Toyota crashed into a car, a black object was
thrown from the driver’s side of the Toyota, and the pursuit
resumed. The pursuit ended near the 405 and Harbor freeways.
The driver and passenger exited the Toyota and fled. Sudario
ran after the driver, Escobar, and detained him. The passenger,
Gutierrez, fled into nearby bushes and Lee saw officers detain
him. Later, Los Angeles Police Detective Joseph Kirby was
escorting Escobar through the police station when Escobar yelled
at Gutierrez, “You better not snitch.”
Los Angeles Police Detective Rosa Torres went to the
shooting scene and found eight .40-caliber casings on Grand. The
casings were consistent with a car’s occupant firing a firearm
while reaching out the window. Torres observed bullet damage
on a front fence, and on a fence towards the rear of the apartment

-- 5 of 35 --

6
complex. Torres testified a photograph (People’s exh. No. 14)
depicted bullet marks on the front fence, and a photograph
(People’s exh. No. 8) depicted bullet damage to the rear fence.
Los Angeles Police Officer Marcos Mercado went to the Harbor
Freeway near the Rosecrans onramp (where the black object had
been thrown from the Toyota) and found parts of a .40-caliber
semiautomatic handgun. Gutierrez tested positive for gunshot
residue on his hand or hands,4 which meant he had discharged a
firearm, had been in the immediate vicinity of a discharging
firearm, or had contacted the surface of an object (e.g., a gun or
bullet) already contaminated with residue.
Several officers testified to having personal interaction
with appellants prior to the shooting. Los Angeles County
Sheriff’s Deputy Anthony Fernandez identified Escobar in court.
Fernandez testified he was on patrol on March 4, 2011, when he
contacted Escobar at 1219 106th Street in the company of Eric
Diaz and Luciano Islas.5 In an admissibility hearing conducted
under Evidence Code section 402, Fernandez testified he
4 A detective testified he collected a “gunshot residue kit”
(Peo. exh. No. 15) from Gutierrez’s “hands.” A criminalist
testified the kit contained a “stub” for each hand, he analyzed
each stub, he found “gunshot residue particles on the kit,” and “if
we find . . . a gunshot residue particle,” “then we believe gunshot
residue was present on the hands.”
5 Fernandez used a field identification card to refresh his
memory as to Islas’s name. The card was not admitted into
evidence. Los Angeles County Sheriff’s Detective Albert Arevalo
testified that Diaz and Islas told him they were Junior Mafia
gang members with the monikers Scrappy and Lefty,
respectively.

-- 6 of 35 --

7
“consensually contacted [Escobar], walked up to him, introduced
myself, and saw him and two other individuals.” Fernandez
testified at trial that when Fernandez asked whether Escobar
was affiliated with a gang, Escobar admitted, “I’m from Junior
Mafia” (JM) and that his moniker was Smiley. Escobar also
showed his tattoo with the letters SCLA to Fernandez. Based on
a photograph, Fernandez testified at trial that the tattoo on
Escobar’s body was the one Fernandez saw during the March
2011 contact. Respondent’s gang expert, Los Angeles County
Sheriff’s Detective Albert Arevalo, testified that the SCLA tattoo
referred to the South Central clique of the JM gang and that he
had seen SCLA tattoos on other JM members.
Other law enforcement personnel testified to their prior
contacts with Gutierrez. Los Angeles Police Officer Jose Bonilla
identified Gutierrez at trial and testified to a May 23, 2012
conversation with Gutierrez and Javier Alvarez. According to
Bonilla, Gutierrez and Alvarez told him they were JM members,
known respectively by the monikers Speedy and Huero. Los
Angeles County Sheriff’s Deputy Jeremiah Hooper testified that
on October 13, 2011, Gutierrez and three other people, including
Gustavo Reyna and Javier Alvarez, were together at 107th and
Budlong in Los Angeles, and Hooper contacted them there.
Arevalo recalled that various unidentified JM members
told him that Gutierrez was a JM member known as Speedy.
Arevalo also testified that Emmanuel Mendoza, a JM member
known as Flaco who sometimes served as an unpaid informant,
told Arevalo that Mendoza’s brother “Jorge” was a JM member
known as Speedy. Testifying as an expert, Arevalo opined
Gutierrez was an active JM member based on (1) Hooper’s report
that he saw Gutierrez with other gang members at 107th and

-- 7 of 35 --

8
Budlong (in JM territory) on October 13, 2011, (2) the fact that
Gutierrez’s associates as reflected in Hooper’s field identification
card were gang members, (3) Bonilla’s “report,” (4) contacts
Arevalo had had with JM members who told him Gutierrez, also
known as Speedy, was an active JM member, and (5) the fact
Mendoza told Arevalo that Mendoza and his brother were JM
members, Mendoza’s brother’s name was Jorge, and Jorge’s
moniker was Speedy.
Arevalo also opined that Escobar was a JM member based
on (1) Escobar’s March 4, 2011 admission to Fernandez
(memorialized in a field identification card) that Escobar was an
active JM member whose moniker was Smiley, (2) the fact that
Escobar’s admission occurred in JM gang territory (1219 106th
Street), and (3) the fact that Escobar had a tattoo indicative of
JM’s South Central clique. Arevalo further opined that
appellants were respected JM members who were soldiers, i.e.,
violent members assigned to commit shootings, and Arevalo
indicated the basis for his opinion was his conversations with
various unidentified JM members. When cross-examined about
that opinion, Arevalo denied that gang members told him
Gutierrez was a “soldier.” Arevalo testified that gang members
characterized Gutierrez “as an active gang member . . . I guess, in
essence, a soldier.”
Explaining his qualifications to testify as an expert,
Arevalo testified he was assigned to a gang unit and had
investigated the JM criminal street gang and the crimes it had
committed in his jurisdiction since 2009. Prior to this case,
Arevalo had testified dozens of times as a JM expert and as a
South Los gang (South) expert. JM had about 80 documented
members and Arevalo had spoken with more than 12 of them.

-- 8 of 35 --

9
During the Evidence Code section 402 admissibility hearing, he
testified he learned about gangs by talking to gang members and
their families casually and consensually out in the field or when
he happened to chat with them while working as a jailer.
Arevalo always corroborated what he learned from gang
members.
Arevalo explained the hierarchy of respect in gangs,
testifying that gang members gain respect from their peers by
putting in work (committing more violent and conspicuous
crimes). He contrasted lower level gang members who break into
cars or peddle dope with gang members “that are soldiers or
gunners . . . the violent ones . . . the ones that people can count on
to go do shootings.” He identified JM’s hand signs, graffiti, and
symbols, and types of hats worn by JM members.
Arevalo provided testimony specific to the day of
appellants’ shootings. He stated that earlier the same day, about
7:00 a.m. on February 27, 2013, South members shot JM
members Javier Alvarez and Carlos Reyna at Imperial Highway
and Vermont, killing Reyna and injuring Alvarez. In response to
a hypothetical question based on evidence, Arevalo testified the
present shooting was committed for the benefit of, and in
association with, the JM criminal street gang. The shooting
benefited JM because Carlos Reyna, a well-respected JM
member, had been murdered earlier that day. The present
shooting happened shortly thereafter and was, in Arevalo’s
opinion, a retaliatory shooting that enhanced JM’s reputation for
violence and demonstrated to a rival gang that JM would
retaliate if something happened to a JM member. Appellants’
shooting also created fear in the community, making it less likely
community members would report JM’s criminal activity.

-- 9 of 35 --

10
Although the shooting was not at South members, Arevalo
testified the shooting benefited JM because it was carried out in
South’s territory.
Arevalo opined the present shooting was committed in
association with a gang because the driver and shooter were JM
members. Arevalo explained that when gang members went on
missions, the gang members brought trusted persons who would
act as backup, not “snitch,” and confirm to a gang that a gang
member had committed a crime. Arevalo opined the present
shooting was a gang crime because it occurred in South’s area in
the midst of growing sentiment that South members killed Carlos
Reyna, making it incumbent on JM to retaliate against South
members or in South territory.6 Arevalo found no documentation
the victims (Justin and Diego) were gang members.
In the defense case, Escobar’s gang expert, Martin Flores,
testified one possibility was the present shooting benefited the
gang, but another possibility was the shooter had a personal
“beef” with the targeted persons and the driver did not know
what was happening. He opined that the rule in Hispanic gangs
was not to target a random civilian. Gutierrez presented
witnesses testifying about his good character, nonviolent nature,
and lack of gang affiliation.
6 Arevalo added, “you don’t have to say, ‘Where are you from’
. . . . Everyone in that neighborhood who’s a gang member, from
Junior Mafia or South Los, knew that Carlos Reyna . . . had been
killed, knew that [he] was shot by South Los gang members.”
Gutierrez interrupted, posing a speculation objection. Escobar’s
counsel interjected, “Everybody in that neighborhood knew.” The
court stated, “As to that, that will be stricken as speculation.”

-- 10 of 35 --

11
ISSUES
Gutierrez asks this court to conduct an independent review
of the in camera hearing on his Pitchess7 motion. He also claims
(1) insufficient evidence supports his convictions, the
premeditation and deliberation findings, and the gang finding,
(2) the trial court erroneously imposed consecutive sentences,
concerning which Gutierrez’s trial counsel rendered ineffective
assistance of counsel, (3) Gutierrez’s sentence constituted cruel
and unusual punishment, and (4) the court’s kill-zone instruction
was erroneous.
Escobar claims (1) the People relied on testimonial hearsay
to prove the gang enhancement, (2) the Sixth Amendment
prohibits an expert witness from disclosing testimonial hearsay
as basis evidence at trial, (3) under California law, Arevalo’s
disclosure of testimonial hearsay as basis evidence violated
Escobar’s Sixth Amendment confrontation right, and (4) the
prosecutor’s closing argument constituted impermissible
comment on Escobar’s exercise of a constitutional right.8
DISCUSSION
1. The Trial Court Fulfilled Its Responsibilities Under Pitchess.
Gutierrez filed a pretrial Pitchess motion seeking
information from the personnel files of Arevalo on various issues.
The supporting declaration of Gutierrez’s counsel reflected that
on May 15, 2013, Arevalo told a deputy district attorney that
Gutierrez had admitted to Arevalo that Gutierrez was in a gang.
Gutierrez’s counsel, on information and belief, denied Gutierrez
made any statement to Arevalo. At the May 21, 2014 hearing on
7 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
8 Each appellant joins in the claims of the other.

-- 11 of 35 --

12
the motion, the court granted the motion, limited to the issues of
“dishonesty and moral turpitude,” then conducted an in camera
hearing and ordered sealed the transcript thereof. Following the
in camera hearing, the court indicated that, after reviewing what
the Los Angeles County Sheriff’s Department (the real party in
interest) had presented in camera, the court was not ordering
discovery.
Gutierrez asks this court to conduct an independent review
of the in camera hearing. Trial courts are granted wide
discretion when ruling on motions to discover police officer
personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827
(Samayoa); People v. Memro (1995) 11 Cal.4th 786, 832.) We
have reviewed the contents of the sealed transcript of the May 21,
2014 in camera hearing. The transcript constitutes an adequate
record of the trial court’s review of any document(s) provided to
the trial court during said hearing, and fails to demonstrate the
trial court abused its discretion by failing to disclose information.
(Cf. Samayoa, at p. 827; see People v. Mooc (2001) 26 Cal.4th
1216, 1228-1230, 1232.) The trial court fulfilled its
responsibilities under Pitchess.
2. Sufficient Evidence Supports Appellants’ Attempted Murder
Convictions and the Premeditation and Gang Findings.
Appellants claim there is insufficient evidence supporting
his attempted murder convictions and the premeditation,
deliberation, and gang findings. We disagree. Our task is to
determine whether a rational trier of fact could find the
defendant guilty beyond a reasonable doubt, and we view the
evidence in the light most favorable to the People and presume in
support of the judgment the existence of every fact the jury could

-- 12 of 35 --

13
reasonably deduce from the evidence. (Ochoa, supra, 6 Cal.4th at
p. 1206.)
“Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Lee (2003)
31 Cal.4th 613, 623.) Evidence of attempted murder must
establish “the defendant harbored express malice toward the
victim, i.e., the defendant either desired the victim’s death or
knew to a ‘substantial certainty’ that the victim’s death would
occur. [Citation.]” (People v. Anzalone (2006) 141 Cal.App.4th
380, 389.) The act of discharging a firearm toward a victim at
close range in a manner that could have inflicted a mortal wound
had the bullet been on target is sufficient to support an inference
of intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 741.)9
9 The court, using CALCRIM No. 600 (read as a whole and
reasonably understood), instructed the jury, inter alia, that (1) to
prove attempted murder, the People had to prove the defendant
intended to kill a person, and (2) the attempted murder of Diego
was based on the kill zone theory the defendant intended to kill
Justin by killing everyone in the kill zone, including Diego, or
based on the theory that defendant intended to kill Diego. (See
fn. 14, post.)

-- 13 of 35 --

14
Moreover, the law applicable to premeditation and deliberation is
settled.10
In the present case, there was substantial evidence
supporting the convictions for attempted murder and the findings
of premeditation and deliberation. Justin and Diego, neither of
whom was armed or a gang member, were innocently playing in
10 “Deliberate” means arrived at as a result of careful thought
and weighing of considerations for and against the proposed
course of action, and “premeditated” means considered
beforehand. (People v. Perez (1992) 2 Cal.4th 1117, 1123.)
Deliberation and premeditation can occur in a brief period of
time. The true test is not the duration of time as much as it is
the extent of the reflection. (People v. Thomas (1945) 25 Cal.2d
880, 900.) People v. Anderson (1968) 70 Cal.2d 15, 26-27, sets
forth three categories of evidence relevant to whether a defendant
harbored premeditation: planning activity, prior relationship,
and (in the context of murder) the manner of killing. (People v.
Hovarter (2008) 44 Cal.4th 983, 1019.) The act of obtaining a
weapon is evidence of planning consistent with a finding of
premeditation and deliberation. (People v. Koontz (2002)
27 Cal.4th 1041, 1081-1082.) An assailant’s use of a firearm
against a defenseless person may show sufficient deliberation.
(People v. Bolin (1998) 18 Cal.4th 297, 332-333.) A jury may
determine whether premeditation exists “from a consideration of
the type of weapon employed and the manner of its use; the
nature of the wounds suffered by the [victim]; the fact that the
attack was unprovoked and that the [victim] was unarmed at the
time of the assault; the conduct of [the] assailant in . . .
neglecting to aid [the victim], and [the assailant’s] immediate
flight thereafter from the scene of the assault.” (People v. Cook
(1940) 15 Cal.2d 507, 516.) The jury may also consider efforts to
conceal the weapon used. (People v. Clark (1967) 252 Cal.App.2d
524, 529.)

-- 14 of 35 --

15
the backyard of Justin’s apartment building when Escobar drove
up in a Toyota with Gutierrez. Escobar pulled the Toyota over to
the curb, placing Gutierrez, who was on the passenger side, as
close as possible to the victims. The positioning of the Toyota
evidenced planning activity and thus premeditation, as did the
fact the front passenger window was down when the car came to
a stop. Gutierrez’s election to conceal his face with a scarf or
bandanna evidenced consciousness of guilt regarding the
attempted murders. It also evidenced planning, hence
premeditation. Appellants were gang members and Gutierrez
asked Justin and Diego, “Where you fools from,” a gang challenge
providing evidence of a motive for appellants’ intent to kill and
premeditation.
The fact Gutierrez immediately fired meant appellants
arrived with the gun loaded, intending to shoot; this too was
evidence of premeditation. Reaching out the window
demonstrated an intent to shorten the distance between
Gutierrez and the victims; this was further evidence of intent to
kill and premeditation.
Gutierrez fired at least eight times toward the location
where Justin and Diego were playing, wounding Justin in the
buttocks and ankle (and there was evidence Gutierrez’s weapon
was a semiautomatic handgun); these facts provided evidence of
both intent to kill and premeditation. The testimony of Justin,
Diego, and Torres, and the photographs admitted in evidence,
provided substantial evidence as follows. Justin and Diego were
in a relatively small and confined backyard, the two concluded
their best chance of escaping was to run southwest towards the
side of the house, Gutierrez was shooting at them as they fled
and converged towards the narrow opening on the side of the

-- 15 of 35 --

16
house, and he intended to kill Justin and Diego or intended to kill
Justin by intending to kill everyone, here Diego, in a kill zone.
This was evidence of intent to kill. There was substantial
evidence that during the ongoing shots, Diego was close enough to
Justin to hear him fall and to turn back to help him. (See fn. 3,
ante.) This was evidence of intent to kill both Justin and Diego.
Although the bullets missed him, Diego heard one strike a nearby
gate; this too was evidence of intent to kill both victims.
Casing evidence discovered at the location of the shooting
was consistent with the passenger firing the gun while reaching
out the window. Appellants’ flight from the scene, speeding away
in the Toyota, manifested consciousness of guilt regarding the
attempted murders. (Cf. People v. Pensinger (1991) 52 Cal.3d
1210, 1246; § 1127c.)
Lee pursued appellants, and Officers Padilla and Sudario
later joined Lee and conducted a high-speed chase. During the
pursuit, one of the appellants, or both of them, threw out of the
Toyota’s driver’s side window a .40-caliber semiautomatic
handgun. After the Toyota finally stopped with police in pursuit,
appellants fled from the Toyota on foot. All of these acts
evidenced consciousness of guilt regarding the attempted
murders. Escobar’s admonition to Gutierrez not to snitch was
further evidence of Escobar’s consciousness of guilt. (People v.
Slocum (1975) 52 Cal.App.3d 867, 887.) Gutierrez had gunshot
residue on his hand(s), evidence he was the shooter and directly
perpetrated the attempted murders. As we discuss post, there
was substantial evidence appellants were JM members who
committed the present shootings for the benefit of, and in
association with, JM, in retaliation for South’s shooting of other
JM members earlier that day.

-- 16 of 35 --

17
The fact the bullets were not lethal does not undermine the
evidence of intent to kill. There was substantial evidence
Gutierrez fired a fusillade of bullets in the direction of Justin and
Diego, supporting the jury’s conclusion that appellants’ purpose
was to kill Justin and Diego. The fact “the victim[s] may have
escaped death because of the shooter’s poor marksmanship”
(People v. Lashley (1991) 1 Cal.App.4th 938, 945) when using a
high-caliber weapon does not vitiate intent to kill. (Ibid.) We
conclude there was sufficient evidence appellants committed the
attempted murders of Justin and Diego, and sufficient evidence
appellants committed those offenses with premeditation and
deliberation.
We also conclude sufficient evidence supported the gang
findings. Deputy Fernandez testified that in March 2011,
Escobar admitted to Fernandez that Escobar was a JM member.
Fernandez testified from personal knowledge and recollection of
his encounter with Escobar, using the field identification card
(which was not admitted into evidence) only to refresh his
memory as to Luciano Islas’s name. Escobar’s admission of JM
gang membership was corroborated by the SCLA tattoo he
displayed to Fernandez in 2011, a tattoo that remained on his
body at the time of trial. Arevalo identified the tattoo as one
worn by other gang members. When Fernandez encountered
Escobar in 2011, Escobar was in JM gang territory and in the
company of Islas who, on another occasion, admitted to Arevalo
that Islas was a JM gang member. A New York Mets hat
typically worn by JM members was found in appellants’ vehicle.

-- 17 of 35 --

18
Similarly, Officer Bonilla testified that in May 2012,
Gutierrez and Alvarez told Bonilla that the two were JM
members known as Speedy and Huero, respectively. Deputy
Hooper testified that in October 2011, Gutierrez and three other
people, including Gustavo Reyna and Alvarez, were together at
107th and Budlong in Los Angeles, and Hooper contacted them
there. The location of the shooting (in or on the border of South’s
territory), its perpetration by two JM gang members (one of
whom asked the victims where they were from), and its
occurrence hours after JM members learned that one of their
members was the victim of a fatal shooting attributed to a rival
gang, provide additional evidence of Escobar’s gang affiliation
and commission of the crime for gang-related purposes.
There was substantial evidence appellants committed the
attempted murders “for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members” within the meaning of section 186.22, subdivision
(b)(1). (Cf. People v. Albillar (2010) 51 Cal.4th 47, 59-63, 68;
People v. Leon (2008) 161 Cal.App.4th 149, 163; People v. Romero
(2006) 140 Cal.App.4th 15, 19-20; People v. Morales (2003)
112 Cal.App.4th 1176, 1198-1199.)
3. Remand is Appropriate to Permit the Trial Court To Clarify Its
Sentence on Counts 1 and 2.
a. Pertinent Facts.
On the first day of trial, the court commented, “If you are
convicted on this type of case, there’s not much a judge can
do. . . . Because the sentencing requirements are mandated by
statute. Most of them are. There’s very, very little discretion. In
other words, there’s little I can do with your sentence.” Following

-- 18 of 35 --

19
appellants’ convictions, the People filed a three-page sentencing
memorandum that listed the offenses and requested for each
appellant a prison sentence of “40-life” on each of counts 1 and 2,
noting that “[u]nder this computation, the total sentence for each
defendant is 80 to life.” Although it did not use the word
“consecutive,” the memorandum effectively asked the court to
impose consecutive sentences. Aside from referencing the
charges on which the jury found appellants guilty, and the jury’s
findings on the gang and firearm allegations, the memorandum
did not present argument in favor of imposing consecutive, as
opposed to concurrent, sentences. Neither appellant filed a
sentencing memorandum.
The probation report did not expressly address the issue of
consecutive versus concurrent sentences for either appellant.
However, it did address aggravating and mitigating factors
pertinent to any exercise of discretion in sentencing.
During the sentencing hearing, the court began by stating
it had read and considered appellants’ probation reports and the
People’s sentencing memorandum. The court then invited
argument from Gutierrez’s counsel, who stated, “I know that
we’re in a position where the statute and the court’s -- the
limitations of the sentence are pretty clear, and it’s a very high
sentence.” Gutierrez’s counsel then recited mitigating factors
that Gutierrez was a young man with a supportive family, and a
good kid who did not get into trouble. Although letters of
recommendation are not part of the record on appeal, they were
submitted to the court and, as argued by Gutierrez’s counsel,
evidenced Gutierrez’s “exemplary” life.

-- 19 of 35 --

20
Gutierrez’s counsel acknowledged that the court had
limited discretion, stating, “to the extent that the court has any
discretion, which I know in this case there isn’t much, I’d ask you
to exercise that because basically, he, if given the opportunity,
could have been anything.” Escobar’s counsel submitted the
matter without argument. The court then inquired whether the
prosecution had submitted a victim impact statement (there was
none).
Before imposing sentence, the court addressed the
mitigating factors for Gutierrez (noting he was “sort of the good
child”). The court then stated, “However, it was Mr. Gutierrez
who had the gun in his hand. It was Mr. Gutierrez who decided
to pull the trigger. Although that does not make a difference, I
did need to address that issue because this is, as [Gutierrez’s
counsel] states, it’s mandatory sentencing. And the court will
follow the mandatory sentence and sentence the defendants as
follows.” The court sentenced each appellant to prison on each of
counts 1 and 2 to 15 years to life for attempted premeditated
murder, plus 25 years to life for a firearm enhancement, and
ordered each appellant to serve the terms on counts 1 and 2
consecutively, with the result each appellant’s total prison
sentence was 80 years to life. As to both appellants, the court
stayed punishment on count 3 pursuant to section 654.
b. Analysis.
Appellants claim the trial court’s imposition of consecutive
sentences was error because it was unaware it had discretion to
impose concurrent rather than consecutive 40-years-to-life prison
sentences on counts 1 and 2. As noted in People v. Downey (2000)
82 Cal.App.4th 899, “ ‘Failure to exercise a discretion conferred
and compelled by law constitutes a denial of a fair hearing and a

-- 20 of 35 --

21
deprivation of fundamental procedural rights, and thus requires
reversal. [Citations.]’ [Citation.] Where . . . a sentence choice is
based on an erroneous understanding of the law, the matter must
be remanded for an informed determination. [Citations.]” (Id. at
p. 912.) Moreover, where the record is unclear concerning a
sentencing disposition, we may vacate the sentence and remand
the matter for resentencing to permit the trial court to clarify its
sentence. (Cf. People v. Garcia (1997) 59 Cal.App.4th 834, 839;
Pen. Code, § 1260.)
There is no dispute that a prison sentence of 40 years to life
on each of counts 1 and 2 was mandatory. (People v. Oates (2004)
32 Cal.4th 1048, 1062-1068 [section 654’s multiple victim
exception applies]; People v. Campos (2011) 196 Cal.App.4th 438,
445, 448-454 [mandatory 15-year minimum parole eligibility
term for attempted premeditated murder with gang finding];
§§ 186.22, subd. (b)(5), 187, subd. (a), 664, subd. (a), 12022.53,
subds. (a)(1) & (18), (d) [mandatory firearm enhancement of 25
years to life], (g), & (h).) Moreover, “[i]t is well established that a
trial court has discretion to determine whether several sentences
are to run concurrently or consecutively. (Pen. Code, § 669;
[citation].)” (People v. Bradford (1976) 17 Cal.3d 8, 20.)
However, the record is unclear as to whether the trial court
was aware of its discretion to impose concurrent sentences on
counts 1 and 2. There was some evidence the court was aware of
its discretion. For example, the court’s electing to review the
probation report, inviting and hearing argument from counsel at
the sentencing hearing, inquiring into whether the prosecution
submitted a victim impact statement, and discussing mitigating
factors, provide evidence the court believed it had discretion to
impose concurrent sentences. (See People v. Leung (1992)

-- 21 of 35 --

22
5 Cal.App.4th 482, 501 [“had the court believed that consecutive
terms were mandatory, it would not have stated reasons for their
imposition since none would have been required.”].) On the other
hand, there was also evidence the court was unaware of its
discretion. For example, the trial court stated, “it’s mandatory
sentencing.” (Italics added.) The court also stated, “the court
will follow the mandatory sentence and sentence the defendants
as follows.” (Italics added.)
In light of the above ambiguity, we will vacate appellants’
sentences and remand for sentencing to permit the trial court to
clarify whether it is aware of its discretion to impose concurrent
sentences on counts 1 and 2, and to resentence appellants on
those counts. We express no opinion as to which alternative,
concurrent or consecutive sentences, the trial court should
choose.11
4. There Was No Violation of Appellants’ Rights to Confrontation.
In Crawford v Washington (2004) 541 U.S. 36 [158 L.Ed.2d
177] (Crawford), the high court “held that ‘[t]estimonial
statements of witnesses absent from trial have been admitted
only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.’
[Citation.]” (People v. Johnson (2015) 61 Cal.4th 734, 761,
11 In light of the above analysis, there is no need to reach the
issues of (1) whether appellants’ sentences constituted cruel
and/or unusual punishment, and whether that issue was
preserved for appellate review, (2) whether the court abused its
discretion by imposing consecutive instead of concurrent
sentences on counts 1 and 2, or erred by failing to state reasons
for imposing consecutive sentences, or (3) whether appellants
received ineffective assistance of counsel regarding these matters.

-- 22 of 35 --

23
fn. omitted.) In People v. Geier (2007) 41 Cal.4th 555 (Geier), our
Supreme Court observed that Davis v. Washington (2006)
547 U.S. 813 [165 L.Ed.2d 224] “made clear that the
confrontation clause applies only to testimonial hearsay
statements and not to such statements that are nontestimonial.”
(Geier, at p. 603.) Although the Supreme Court in Crawford did
not define “testimonial evidence,” it noted that such testimony
includes statements made “ ‘under circumstances which would
lead an objective witness reasonably to believe that the statement
would be available for use at a later trial’ ” such as “prior
testimony at a preliminary hearing, before a grand jury, or at a
former trial; and [statements made during] police interrogations.”
(Crawford, at pp. 52, 68.)
Recently, in People v. Sanchez (2016) 63 Cal.4th 665, the
California Supreme Court reversed a finding by the jury that a
gang allegation was true, holding that “case-specific statements
related by the prosecution expert concerning defendant’s gang
membership constituted inadmissible hearsay” (id. at p. 670) and
that “[s]ome of those hearsay statements were also testimonial
and therefore should have been excluded under Crawford.”12
(Id. at pp. 670-671.)
12 Sanchez was decided after argument in this case. We
invited further briefing from the parties addressing the impact, if
any, of Sanchez on this case. We have reviewed and considered
the additional briefing.

-- 23 of 35 --

24
In Sanchez, the gang expert, Detective Stow, testified that
the defendant was a member of the Delhi gang (Delhi) and
possessed a firearm, and narcotics for sale, for the benefit of
Delhi. (Sanchez, supra, 63 Cal.4th at p. 673.) As the basis for his
testimony, Stow relied on information and/or statements
contained in police documents, i.e., (1) a “STEP notice,”13 (2) two
police reports relating the circumstances of the defendant’s
presence during, and/or his statements to police about, two
shootings of gang members, respectively, (3) a field identification
card relating a police contact with the defendant, who was in the
company of a Delhi member, and (4) a police report relating a
police contact and the defendant’s arrest with a Delhi member.
(Id. at pp. 672-673.)
Stow admitted he had never met the defendant and was not
present when the defendant was given the STEP notice or when
the other police contacts with the defendant occurred. (Sanchez,
supra, 63 Cal.4th at p. 673.) The police reports were not
admitted into evidence. (Id. at p. 694.)
Notwithstanding the trial court’s instruction that the jury
not accept the other officers’ statements as proof of the truth of
the matters stated, the Supreme Court concluded there was no
denying that such case-specific facts are offered as true. Without
independent competent proof of these facts, the jury had no basis
on which to accept the expert’s opinion. (Sanchez, supra,
63 Cal.4th at p. 684.) “What an expert cannot do is relate as true
case-specific facts asserted in hearsay statements, unless they
13 “This acronym is a reference to the California Street
Terrorism Enforcement and Prevention Act.” (Sanchez, supra,
63 Cal.4th at p. 672, fn. 3.)

-- 24 of 35 --

25
are independently proven by competent evidence or are covered
by a hearsay exception.” (Id. at p. 686.)
Sanchez reviewed post-Crawford case law and observed
that statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating
the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency, but statements are
testimonial when the circumstances objectively indicate there is
no such ongoing emergency and the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution. (Sanchez, supra,
63 Cal.4th at p. 688.) Sanchez noted that other post-Crawford
decisions turned on the formality of the statement at issue.
(Id. at p. 692; see People v. Dungo (2012) 55 Cal.4th 608, 619.)
Sanchez concluded that (1) the STEP notice signed by a
police officer under penalty of perjury and relating information
about, and statements made by, the defendant, and (2) the police
reports, which were compiled during a police investigation of
completed crime, were testimonial. (Sanchez, supra, 63 Cal.4th
at pp. 694-697.) Sanchez also concluded that a field identification
card, if made in the course of an ongoing investigation of a crime,
would be testimonial. (Id. at p. 697.) On the other hand,
testimony providing information that was not case-specific and
that concerned general gang behavior, its territory, and the
gang’s conduct was relevant and admissible. (Id. at p. 698.)
Escobar argues, inter alia, “The only evidence of
Appellant’s connection to a gang, other than the events
underlying this case, was [Deputy Fernandez’s] testimony, which
was based on the March 2011 [field identification] card, three
years before trial.” (Italics added.) We reject the argument.

-- 25 of 35 --

26
Fernandez testified that on March 4, 2011, Escobar admitted to
Fernandez that Escobar was a JM member. That testimony was
based on Fernandez’s personal knowledge of what Escobar told
him, not the card. Fernandez used his field identification card
only to refresh his memory as to Islas’s name and the card was
not admitted into evidence. Likewise, Officer Bonilla testified
that in May 2012, Gutierrez admitted to Bonilla that Gutierrez
was a JM member known as Speedy. Fernandez’s testimony
relating Escobar’s statement to him, and Bonilla’s testimony
relating Gutierrez’s statement to him, did not violate appellants’
respective rights to confrontation; a defendant cannot complain
that the defendant cannot confront himself or herself. (Cf. People
v. Roldan (2005) 35 Cal.4th 646, 711; see People v. Rangel (2016)
62 Cal.4th 1192, 1215 & fn. 7; United States v. Nazemian (9th
Cir., 1991) 948 F.2d 522, 525-526.)
Moreover, in this case, the People did not rely exclusively
on Arevalo’s expert testimony to establish facts recorded in field
identification cards. Instead, the People called and subjected to
cross-examination, several officers who had contact with
appellants. Escobar, joined by Gutierrez, contends that Arevalo
improperly relied “on FI cards (other than the one Dep.
Fernandez testified about).” However, the record demonstrates
that Arevalo relied on Fernandez’s field identification card only
when Arevalo testified about Escobar. Further, the only field
identification card that Arevalo referred to and that was not filled
out by Fernandez was Bonilla’s field identification card
identifying Gutierrez. To the extent the field identification cards
of Fernandez and Bonilla reflected statements of Escobar and
Gutierrez, respectively, a defendant has no right to confront
himself or herself. Finally, to the extent appellants complain

-- 26 of 35 --

27
that Arevalo’s expert testimony was based on hearsay, any
hearsay statements by appellants were admissible under the
admissions hearsay exception (Evid. Code, § 1220) and, in light of
the strong evidence of appellants’ guilt, any error in the
admission of other hearsay was not prejudicial. (Cf. People v.
Watson (1956) 46 Cal.2d 818, 836.)
Escobar’s contention that “casual conversations with
unidentified individuals including gang members and police
officers” was improper testimonial hearsay under Crawford is
incorrect as a matter of law. The key issue for distinguishing
testimonial statements from nontestimonial statements under
Crawford is whether the information was elicited in a formal
setting like a preliminary hearing, a police interrogation, or a
formal investigation. As noted in People v. Cage (2007)
40 Cal.4th 965 (Cage), “the statement must have been given and
taken primarily for the purpose ascribed to testimony—to
establish or prove some past fact for possible use in a criminal
trial.” (Id. at p. 984.) Cage noted that, according to Crawford,
“ ‘[a]n accuser who makes a formal statement to government
officers bears testimony in a sense that a person who makes a
casual remark to an acquaintance does not.’ [Citation.]” (Cage,
at p. 984, fn. 14, italics added.) While testimony based on casual
conversations may constitute statements inadmissible under the
rules governing hearsay, it is not testimonial hearsay for
purposes of Crawford.
In supplemental briefing, Escobar identifies additional
testimony that he contends was admitted in violation of
Crawford: Arevalo’s testimony South members shot at JM
members earlier that day, Arevalo’s testimony there was a “turf
war,” and his testimony that appellants were “ ‘soldiers’ with a

-- 27 of 35 --

28
propensity for violence who could be counted on by the gang to ‘go
do shootings.’ ” As explained below, we find no error in the
admission of these statements.
Before permitting Arevalo to testify at trial, the trial court
allowed appellants to cross-examine Arevalo in an Evidence Code
section 402 hearing conducted outside the presence of the jury.
During that hearing, Arevalo testified that he was present when
Alvarez, a JM member who was a victim of the 7:00 a.m. shooting
attributed to South, told homicide detectives that he recognized
the shooter as a South gang member. Escobar’s trial counsel
argued that Arevalo’s testimony the shooting was in retaliation
for the early morning shooting should be excluded as testimonial
hearsay because the information was “gained during
investigations for purposes of prosecution.” The trial court
overruled the objection, concluding the testimony was admissible
nontestimonial evidence because it came from a witness who was
not in custody and was being interviewed as a victim.
However, confrontation clause error under Crawford does
not depend on whether the out-of-court declarant is a suspect or a
victim; it depends on the circumstances under which the hearsay
statement was made. In Cage, a victim waiting in the emergency
room an hour after sustaining injuries described the
circumstances of his stabbing to a police officer who asked, “What
happened?” Although the conversation was informal, our
Supreme Court concluded the victim’s statements were
testimonial noting that “the requisite solemnity was imparted by
the potentially criminal consequences of lying to a police officer.”
(Cage, supra, 40 Cal.4th at p. 986.) There is no dispute that
Arevalo’s knowledge that Alvarez identified the South shooter
came from a conversation with homicide police officers who were

-- 28 of 35 --

29
investigating the homicide of Alvarez’s companion. If Arevalo
had quoted Alvarez’s statement to police at trial, Arevalo’s
testimony would have constituted testimonial hearsay in
violation of the confrontation clause if offered for the truth of the
matter.
However, apart from whether Alvarez’s statements
attributing his shooting to a rival gang were admissible for their
truth, they were admissible to show Alvarez’s motivation as a
member of JM (appellants’ gang) to retaliate. As such, they were
nonhearsay. Arevalo’s testimony “the Junior Mafia gang
members believed it was South Los” was likewise admissible
because JM members’ perception that South was responsible for
Alvarez’s shooting (rather than the accuracy of that perception)
was material to appellants’ motive to retaliate. We therefore
conclude that Arevalo did not offer inadmissible hearsay and that
appellants’ Sixth Amendment rights were not compromised.
(Cf. People v. Hill (2011) 191 Cal.App.4th 1104, 1136; see Cage,
supra, 40 Cal.4th at p. 984 & fn. 14.)
We also find no error in Arevalo’s testimony that appellants
were “soldiers” and that the two gangs were engaged in a “turf
war.” These statements were properly admitted as opinions
based on admissible evidence about appellants’ ties with the JM
gangs and the circumstances of their involvement in the
shootings in this case.
5. No Impermissible Prosecutorial Jury Argument Occurred.
Detective Kirby testified he was working about 9:00 p.m. on
February 27, 2013. The prosecutor asked what role Kirby had in
the investigation, and Kirby replied, “I interviewed the two
defendants that night.” Escobar objected the latter testimony
violated Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d

-- 29 of 35 --

30
106] (Griffin) because the testimony implied Escobar had invoked
his Fifth Amendment rights when he was interrogated. The
prosecutor explained she had intended only that Kirby testify he
had heard Escobar tell Gutierrez, “Don’t snitch.” The court
regarded the challenged testimony as “probably” not proper but
concluded no error had occurred under Doyle v. Ohio (1976)
426 U.S. 610 [49 L.Ed.2d 91] (Doyle) or Griffin. The court struck
the prosecutor’s question and Kirby’s answer, and instructed the
jury not to consider either for any purpose.
Kirby later testified that while he was escorting Escobar in
the station, he heard Escobar yell at Gutierrez, “You better not
snitch.” During jury argument, Escobar’s counsel suggested
Escobar was innocently driving and was surprised by the
shooting. During final argument, the prosecutor argued Escobar
did not pull over for the police, exit the car with hands up, protest
his innocence, and say he was a witness and not a crime partner.
Escobar characterizes Kirby’s reference to interviewing
appellants and the prosecutor’s jury argument as Doyle and/or
Griffin error. In Doyle, the United States Supreme Court stated,
“We hold that the use for impeachment purposes of petitioners’
silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the Fourteenth
Amendment.” (Doyle, supra, 426 U.S. at p. 619, italics added.)
Griffin holds it is error for a prosecutor to comment, directly or
indirectly, on the failure of the defendant to testify. (People v.
Hughes (2002) 27 Cal.4th 287, 371-372.) The prosecutor may,
however, comment “ ‘on the state of the evidence.’ ” (People v.
Hovey (1988) 44 Cal.3d 543, 572 (Hovey).) In determining
whether Griffin error has occurred, we ask whether there is a
reasonable likelihood jurors could have understood the

-- 30 of 35 --

31
prosecutor’s comments to refer to the defendant’s failure to
testify. (People v. Clair (1992) 2 Cal.4th 629, 663.) As noted in
Hovey, “indirect, brief and mild references to a defendant’s failure
to testify, without any suggestion that an inference of guilt can be
drawn therefrom, are uniformly held to constitute harmless
error.” (Hovey, at p. 572.) We hold no Doyle, Griffin, or other
constitutional error occurred.
6. The Trial Court Did Not Err by Reading the “Kill Zone”
Instruction.
As mentioned, the court, using CALCRIM No. 600,
instructed on a “kill zone.”14 Gutierrez argues this court should
reverse the judgment on the ground the court’s instruction should
have referred to a “zone of lethal harm” rather than a “zone of
harm.” We reject the argument; the language given was proper.
(People v. Bragg (2008) 161 Cal.App.4th 1385, 1395-1396.)
14 The instruction stated, inter alia, “A person may intend to
kill a specific victim or victims and at the same time to kill
everyone in a particular zone of harm or ‘kill zone.’ In order to
convict the defendant of the Attempted Murder of Diego
Fernandez, the People must prove that the defendant not only
intended to kill Justin Padilla but also either intended to kill
Diego Fernandez, or intended to kill everyone within the kill
zone. If you have a reasonable doubt whether the defendant
intended to kill Diego Fernandez or intended to kill Justin
Padilla by killing everyone in the kill zone, then you must find
the defendant not guilty of the Attempted Murder of Diego
Fernandez.”

-- 31 of 35 --

32
Gutierrez also argues his trial counsel’s reference to
“transferred intent” in his closing argument15 constituted
ineffective assistance of counsel. We reject the claim. The
doctrine of transferred intent does not apply to attempted
murder. (People v. Bland (2002) 28 Cal.4th 313, 317 (Bland).)
However, Gutierrez’s trial counsel made only a single, brief
reference to transferred intent. During the final charge, the
court, using CALCRIM No. 600, instructed the jury on the kill
zone theory, and the instruction did not refer to transferred
intent. The court, using CALCRIM No. 200, instructed the jury
that “[y]ou must follow the law as I explain it to you, even if you
disagree with it. If you believe that the attorneys’ comments on
the law conflict with my instructions, you must follow my
instructions.” We presume the jury followed these instructions.
(Cf. People v. Sanchez (2001) 26 Cal.4th 834, 852.) The jury
found not only that appellants committed attempted murders
with the requisite intent, but that the attempted murders were
premeditated and deliberate. Any constitutionally-deficient
representation in the reference by Gutierrez’s trial counsel to
transferred intent was not prejudicial (see People v. Slaughter
(2002) 27 Cal.4th 1187, 1219), therefore, no ineffective assistance
of counsel occurred.
15 Gutierrez’s trial counsel stated, “And this zone of harm or a
kill zone doesn’t change anything. That just means if I want to
shoot one person and there are other people around -- I’m sorry.
If I want to kill one person and there are other people around, the
Court said that I can -- they can transfer the intent to kill person
1 also to person 2. But what’s required is the same intent to kill.
I can’t intend to harm or scare someone and you make that an
intent to kill by calling it a kill zone. It’s absolutely not the law.”

-- 32 of 35 --

33
Gonzales further contends there was no evidence he
intended to kill Justin by killing everyone in the area where
Justin was located. According to Gutierrez, “there was no
indication that bullets were sprayed over a wide area
encompassing [Diego].” Gutierrez points to other evidence the
shooter aimed in a downward direction as suggesting an intent to
instill fear rather than strike the victims.
As explained in Bland, supra, 28 Cal.4th at pp. 329-330, a
person who desires to kill a particular target may concurrently
intend to kill others within a kill zone; where a defendant
intentionally creates a kill zone to ensure the death of his
primary victim, the trier of fact may reasonably infer, based on
the defendant’s method of attack, an intent to kill others
concurrent with the intent to kill the primary victim. For
example, “ ‘a defendant who intends to kill A and, in order to
ensure A’s death, drives by a group consisting of A, B, and C, and
attacks the group with automatic weapon fire . . . has
intentionally created a “kill zone” to ensure the death of [the]
primary victim.’ ” (Id. at pp. 329-330.) Under these
circumstances, “ ‘the trier of fact may reasonably infer from the
method employed an intent to kill others concurrent with the
intent to kill the primary victim.’ ” (Id. at p. 330.)
In Bland, the court concluded a defendant who shot a flurry
of bullets intending to kill the driver of a car concurrently
intended to kill the passengers and could be convicted of the
attempted murder of others in the automobile (the kill zone).
Similarly, in this case, the record contains substantial evidence
the victims were playing basketball together when Gutierrez
rapidly fired a barrage of bullets (eight or ten bullets) in their
direction. As mentioned, there was substantial evidence that

-- 33 of 35 --

34
Justin and Diego were in a relatively small and confined
backyard, they concluded their best chance of escaping was to run
southwest towards the side of the house, and Gutierrez was
shooting at them as they both ran towards the narrow opening on
the side of the house. There was evidence the victims were close
to one another during the shooting; as mentioned, there was
evidence that, during the ongoing shots, and when two bullets
struck Justin, Diego was close enough to Justin to hear him fall
and to turn back to help him. Another bullet struck a gate near
Diego.
The above facts are sufficient to support a finding Diego
was in a kill zone appellants created intending to kill Justin, and
Gutierrez concurrently intended to kill Justin and anyone in the
zone, including Diego. We therefore conclude it was not error to
give the kill zone instruction (and also conclude that any failure
by trial counsel to object to the instruction with respect to any of
the above issues was not ineffective assistance of counsel).

-- 34 of 35 --

35
DISPOSITION
The judgments are affirmed, except appellants’ sentences
are vacated and the matter is remanded with directions to the
trial court to clarify whether it is aware of its discretion to impose
concurrent sentences on counts 1 and 2, and to expressly exercise
that discretion and resentence appellants accordingly. The trial
court is directed to forward to the Department of Corrections and
Rehabilitation a new abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HOGUE, J.
We concur:
EDMON, P. J.
LAVIN, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

-- 35 of 35 --