Filed 9/29/16 P. v. Ware CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B266255

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA421346)
         v.

TREMAYNE WARE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Henry J. Hall, Judge. Affirmed.
         Deborah L. Hawkins, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Roberta L. Davis
and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
      A jury convicted defendant Tremayne Ware of the premeditated first degree
murder of Clay Casey (Pen. Code, § 187, subd. (a)) with a firearm (§ 12022.53,
subds. (b), (c), and (d)), and the attempted murders (§§ 664/187, subd. (a)) of
Felicia Medford and Deandra Foster.1 He admitted a prior strike conviction, and
was sentenced to 50 years to life on the murder count, plus 25 years for firearm
use. On the attempted murder counts, he was sentenced to one consecutive term of
18 years, and a second consecutive term of four years, eight months. He appeals
from the judgment of conviction, contending that the trial court erred in not
adequately instructing on the so-called “kill zone” theory, and in permitting the
prosecution’s firearm expert to testify shell casings found at the murder scene and
a bullet recovered from Casey’s body were fired from the gun recovered from
defendant. We disagree with these contentions, and affirm the judgment.


                                   BACKGROUND
Prosecution Evidence
      Around midnight on February 9, 2014, after attending a nightclub to watch a
family member play, Kysean Smith and other family members returned to a
parking structure on Shatto Place in Los Angeles where they had parked. The
group included Clay Casey (Smith’s father), Felicia Medford (Smith’s mother),
Deandra Foster (Smith’s cousin), and Lauren Lucas (Smith’s wife). Casey got in
his Chevrolet Suburban as the driver, with Foster in the right front passenger seat


1
        In the attempted murder counts, the jury found not true allegations of
premeditation and deliberation (§ 664, subd. (a)) and of firearm use (§ 12022.53, subds.
(b), (c), and (d)). The jury also convicted defendant of two counts of assault with a
semiautomatic firearm as lesser included offenses in the attempted murders, but the trial
court later dismissed those charges. Undesignated section references are to the Penal
Code.

                                            2
and Medford in the passenger seat behind Casey. Smith got into his Dodge
Charger with Lucas.
        As Casey was pulling out of the lot, defendant approached the driver’s side
of Casey’s Suburban, and from about seven feet away began firing repeatedly into
the vehicle. Lucas heard seven gunshots. Smith heard approximately 10. Foster
heard seven or eight shots. Casey’s Suburban rolled forward and crashed into a
gate.
        Casey was struck five times — four bullets entered the left side of his body,
the fifth wound was a graze wound to his hand. Casey later died from his wounds.
Foster was shot once in the buttocks. Medford was shot in both legs.
        Lucas and Smith observed the shooting and at trial identified defendant as
the shooter. As defendant fled on foot, Smith and Lucas gave chase in Smith’s car.
Meanwhile, Los Angeles Police Officers Matthew Oropeza and Adam Garcia were
on patrol in the area when they heard the gunshots. They observed defendant
running on Shatto Place toward Wilshire. Defendant stopped and tried to hide
behind an electrical box as additional police units arrived, and then tried to mingle
innocently with others on the street. When the officers illuminated the area,
defendant fled and the officers pursued him on foot.
        Smith and Lucas observed the police vehicles and officers in the intersection
at Wilshire and Shatto Place. Smith told the officers that defendant had shot
Casey, and when defendant ran, Smith continued to pursue him in the Dodge
Charger.
        Defendant ran across Wilshire to Westmoreland Street, where Smith caught
up to him. Defendant made eye contact with Smith and fumbled for something at
his waist. Believing defendant was reaching for a weapon, Smith ran defendant
down with his car, then crashed into a wall.

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      Officer Garcia searched defendant, and recovered a nine-millimeter Taurus
semiautomatic handgun from his right front sweatshirt pocket. There was one
round in the chamber; the magazine was empty. Paramedics arrived and took
defendant to the hospital.
      Among the evidence recovered at the scene of the shooting on Shatto Place
were an expended bullet, and eight nine-millimeter shell casings. Two bullets
were recovered from Casey’s body.
      As here relevant, Los Angeles Police criminalist Kathleen Alvarado, a
firearms examination expert, performed tests to determine whether the shell
casings found at the scene, and the two bullets removed from Casey’s body, were
fired by the nine millimeter pistol recovered from defendant. She explained that
she test fired the gun into a water tank, and microscopically compared the test fired
casings and bullets to the casings and bullets in evidence. She looked for small
individualized characteristics in the tool marks imprinted by the gun (firing pin
impressions on the cartridges, lands and grooves on the bullets left by the barrel) so
as to determine whether sufficient similarity existed between the test fired casings
and bullets and those in evidence to draw a conclusion they were fired by the same
gun. She determined that all those items in evidence except one of the bullets from
Casey’s body were fired by the firearm recovered from defendant. As to the
remaining bullet, her testing was inconclusive. Alvarado had “no doubt” about her
conclusions, which were verified by a second examiner and her supervisor.


Defense Evidence
      Los Angeles Police Officer Juan Del Rio spoke with Foster on the night of
the shooting. She said that the suspects fled in a gold-colored sedan vehicle in a
southbound direction. Foster was in distress and pain, having just been shot,

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sustaining a wound to her buttocks, and was afraid the wound would be life
threatening. She was standing near where the Suburban had come to a stop, then
collapsed.


                                     DISCUSSION
    I. Kill Zone
       As relevant to the attempted murder counts, defendant contends that the trial
court incorrectly instructed the jury on the kill zone theory pursuant to CALCRIM
No. 600, and in response to a jury question, because the court failed to adequately
instruct on the intent element of attempted murder and the meaning of a “kill
zone.” We disagree.


    A. Relevant Proceedings
       The trial court instructed the jury on attempted murder using CALCRIM No.
600. In relevant part, the court instructed: “The defendant is charged in counts
two and three of the information with attempted murder. To prove that the
defendant is guilty of attempted murder, the People must prove that: (1) the
defendant took at least one direct but ineffective step towards killing another
person; and (2) the defendant intended to kill that person. The doctrine of
‘transferred intent’ as explained in instruction 562 does not apply to the crime of
attempted murder.”2




2
       The trial court also gave CALCRIM No. 562, instructing in pertinent part that, as
to count 1 only (the murder count), and exclusive of counts 2 and 3, if appellant
“intended to kill one person, but by mistake or accident killed someone else instead, then
the crime, if any, is the same as if the intended person had been killed.”

                                            5
      The court also gave the portion of CALCRIM No. 600 applicable to the kill
zone theory: “A person may intend to kill a specific victim or victims and at the
same time intend to kill everyone in a particular zone of harm around the intended
victim. This particular zone is called the ‘kill zone.’ In order to convict the
defendant of the attempted murder of Felicia Medford, the People must prove that
the defendant not only intended to kill Clay Casey but that he also intended to kill
Felicia Medford, or intended to kill everyone within the ‘kill zone’. If you have a
reasonable doubt whether the defendant intended to kill Felicia Medford or
intended to kill Felicia Medford by killing everyone in the ‘kill zone’, then you
must find the defendant not guilty of the attempted murder of Felicia Medford. In
order to convict the defendant of the attempted murder of Deandra Foster, the
People must prove that the defendant not only intended to kill Clay Casey but that
he also either intended to kill Deandra Foster, or intended to kill everyone within
the ‘kill zone’. If you have a reasonable doubt whether the defendant intended to
kill Deandra Foster or intended to kill Deandra Foster by killing everyone in the
‘kill zone’, then you must find the defendant not guilty of the attempted murder of
Deandra Foster.”
      On the second day of deliberations, the jury sent a note to the court asking
several questions regarding the instructions, including: “Define kill zone – Is there
a bound[ary] to the zone? For example [is it] limited to the driver’s seat. Is the
bound[ary] defined by where the intended target is seated?” The jury also asked if
attempted murder required intent.
      The court conferred with the parties on how to respond. Defense counsel
objected to the court’s proposed response (which is not included in the record on
appeal). Defense counsel conceded that a kill zone “may not be a geographical
boundary . . . or physical boundary, but I think to inform them that they can’t use

                                          6
the . . . natural physical boundaries within an area where the shooting occurred gets
into their deliberative process. If they’ve decided that the zone of killing was the
front driver’s seat then . . . anything outside of that zone . . . may not be an
intended area.” Defense counsel asked the court to delete certain language, but
“include the language from the instruction itself [referring to CALCRIM No. 600,
which had been modified to name the victims] as the People must prove the
defendant not only intended to kill Mr. Casey but also either intended to kill Felicia
Medford and/or Deandra Forster or intended to kill everyone within the kill zone.”
The court declined to use the victims’ names in defining a kill zone, noting that
cases explaining the kill zone principle refer generically to intending to kill an
intended victim by killing everyone within that area.
      After conferring with the parties, the court sent a written response to the
jury, as follows: “Attempted murder requires a specific intent to kill. That specific
intent to kill may be directed at either a particular individual or everyone within the
so-called ‘kill zone.’ You are referred to Instructions 252[12] and 600 for further
explanation of this concept. [¶] As used in the instructions in this case, the term
‘kill zone’ defines an area in which the perpetrator intended to kill an intended
victim by killing everyone within that area. You are referred to Instruction 600 for
further explanation of this concept.”


B. Analysis
      Relying primarily on Justice Werdegar’s dissent in People v. Smith (2005)
37 Cal.4th 733, 745-747 (Smith), defendant contends that CALCRIM No. 600’s
definition of a kill zone, and the trial court’s response to the jury’s question, were
inadequate, in that they failed to tell the jury that the concept requires a focus on
the nature and scope of attack, and in particular “(1) whether the fact finder can

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rationally infer from the type and extent of force employed in the defendant’s
attack on the primary target that the defendant intentionally created a zone of fatal
harm, and (2) whether the nontargeted alleged attempted murder victim inhabited
that zone of harm. [Citation.]” (Smith, supra, 37 Cal.4th at pp. 755-756, dis. opn.
of Werdegar, J., relying upon Harrison v. State (2004) 382 Md. 477, 495.)
      Initially, we note that CALCRIM No. 600 correctly states the law of
attempted murder. (People v. Lawrence (2009) 177 Cal.App.4th 547, 557.)
Defendant did not object to CALCRIM No. 600, and did not request any
modification. Moreover, to the extent he requested changes to the court’s
proposed response to the jury’s question regarding the kill zone, he did not propose
the modifications urged by defendant on appeal, and wanted to incorporate the
language of CALCRIM No. 600 as given to the jury. Thus, the issue whether the
court adequately instructed on the kill zone theory has been forfeited. “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.” (People v. Lang (1989) 49 Cal.3d 991, 1024.)
      In the alternative, even if the claim were not forfeited, we would reject it.
First, CALCRIM No. 600 and the court’s response to the jury’s question on the kill
zone principle were consistent with our Supreme Court’s description of the
principle. “[T]he fact the person desires to kill a particular target does not preclude
finding that the person also, concurrently, intended to kill others within . . . the ‘kill
zone.’” (People v. Bland (2002) 28 Cal.4th 313, 329 (Bland).) The kill zone
theory “simply recognizes that a shooter may be convicted of multiple counts of
attempted murder on a ‘kill zone’ theory where the evidence establishes that the
shooter used lethal force designed and intended to kill everyone in an area around
the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing

                                            8
of that victim.” (People v. Smith, supra, 37 Cal.4th at pp. 745-746.) The theory
“is not a legal doctrine requiring special jury instructions. . . . Rather, it is simply a
reasonable inference the jury may draw in a given case: a primary intent to kill a
specific target does not rule out a concurrent intent to kill others.” (Bland, supra,
46 Cal.4th at p. 331, fn. 6; see People v. Stone (2009) 46 Cal.4th 131, 137.) Here,
consistent with these principles, CALCRIM No. 600 (and the court’s response to
the jury’s question) simply informed the jury of the kill zone principle, and
properly left to the jury the determination whether it could reasonably be inferred
from the evidence that defendant intended to kill Casey by killing everyone in the
car.
       Second, in her Smith dissent, Justice Werdegar did not suggest that the trial
court should instruct on the specific circumstantial evidence reasoning process –
Does the type and extent of force create a zone of fatal harm? Is the untargeted
victim in that zone? — for the jury to properly consider whether a defendant
possessed a concurrent intent to kill an intended target and anyone else in the kill
zone. In Smith, the defendant fired a single shot at a vehicle driven by a mother,
whose infant son was in the line of fire seated directly behind her. (37 Cal.4th at p.
736.) The jury was not instructed on the kill zone principle. (Id. at p. 746.) On
appeal, the defendant contended that the evidence was insufficient to support his
conviction of attempted murder of the son. The Smith majority, for reasons not
here relevant, and expressly not relying on the kill zone theory, concluded the
evidence was sufficient. (Id. at pp. 736, 746-747.) In dissent, Justice Werdegar
used her analytical model of the kill zone theory as one rationale to assert that the
evidence was not sufficient to support a conviction of attempted murder of the
infant son. (Id. at pp. 755-757 (dis. opn. of Werdegar, J.).) Her discussion had
nothing to do with a jury instruction on the kill zone.

                                            9
      Third, defendant’s challenge to CALCRIM No. 600 and the court’s response
to the jury’s question regarding the kill zone principle is, at base, a challenge to the
holding of Bland. According to defendant, Bland’s kill zone reasoning is a thinly
veiled disguise for improperly applying the doctrine of transferred intent to
attempted murder (the doctrine applies to murder, but not attempted murder), and
Bland’s conclusion that no special instruction is needed is undercut by the jury’s
question in the instant case. Of course, Bland’s holding is binding on this court,
and defendant cited no binding authority that undercuts it. Moreover, the jury was
expressly instructed that the transferred intent doctrine stated in CALCRIM No.
562 applied only the murder charge and not to the attempted murder charges
(CALCRIM No. 600: “The doctrine of ‘transferred intent’ as explained above in
instruction 562 does not apply to the crime of attempted murder”; CALCRIM No.
562: “The following instruction [on transferred intent] applies only to the crime
charged in Count One . . . murder. It does not apply to the crime of attempted
murder, as alleged in Counts Two and Three.”).
      In sum, defendant forfeited his challenge to the adequacy of instructions on
the kill zone principle, and in any event the instructions were correct.


II. Ballistics Evidence
      Defendant contends that the trial court erred in admitting the testimony of
firearms expert criminalist Kathleen Alvarado that, by comparing toolmarks on test
fired bullets and casings to the casings found at the scene and one bullet taken from
Casey’s body, she concluded that the firearm recovered from defendant fired them
all. We disagree.
      Before trial, defendant moved in limine to exclude any testimony related to
firearm toolmark comparison under People v. Kelly (1976) 17 Cal.3d 24 (Kelly),

                                           10
and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579.
Defendant argued that toolmark analysis had not been subject to scientific testing
or formal peer review and was not generally accepted in the scientific community.
He relied on a published article, Tobin and Blau, Hypothesis Testing of the
Critical Underlying Premise of Discernible Uniqueness in Firearms-Toolmarks
Forensic Practice (2013), 53 Jurimetrics 121.
      At the hearing on the motion, defense counsel asked that toolmark evidence
be excluded, but if not, that the prosecutor be limited to eliciting testimony that the
markings on the casings found at the scene and one of the bullets from Casey’s
body were “consistent” with having been fired from the handgun recovered by
defendant. The trial court denied the motion to exclude the firearms evidence. It
reasoned that the Tobin and Blau article did not raise a doubt as to the validity of
firearm toolmark analysis. But even if it did, the decision in People v. Cowan
(2010) 50 Cal.4th 401 (Cowan) upheld the use of such evidence, and under People
v. Venegas (1998) 18 Cal.4th 47, once a published appellate decision has upheld
the admission of evidence, there is no need to conduct a hearing on reliability
unless prevailing scientific opinion has materially changed. Nothing in the Tobin
and Blau article indicated a change in the prevailing scientific theory. The court
further denied the request that the prosecution be limited to eliciting testimony that
the toolmark comparison showed only a consistency between the examined
evidence and the firearm.
      On appeal, defendant contends that the trial court erred in admitting
Alvarado’s testimony. He is wrong. First, as he concedes, firearm identification
evidence has long been admissible in California, and is excludable under Kelly,
supra, which applies only to “new scientific techniques.” (People v. Leahy (1994)
8 Cal.4th 587, 605.)

                                          11
      Second, the decision in Cowan, supra, 50 Cal.4th at page 470 disposes of his
claim. In Cowan, using a mold of a gun barrel, the firearms expert made a
comparison of bullets taken from the murder victim’s body to the mold, and
concluded that the bullets had been fired from that gun. (Id. at p. 468.) The
Supreme Court held that this technique did not require a Kelly hearing on its
reliability because toolmark comparisons are not a new scientific technique.
Further, the technique used in Cowan “merely ‘isolate[d] physical evidence’ —
specifically, the pattern of lands and grooves and associated imperfections on the
inside of the Colt pistol’s barrel, as well as the corresponding markings on the
recovered bullets — ‘whose . . . appearance, nature, and meaning [were] obvious
to the senses’ of the lay jurors” (id. at p. 471), and thus would not contravene the
purpose of the Kelly rule (i.e., “to prevent lay jurors from being unduly influenced
by procedures which seem scientific and infallible, but which actually are not.”
(People v. Webb (1993) 6 Cal.4th 494, 524.)
      Cowan is controlling regarding admission of Alvarado’s testimony that the
gun recovered from defendant fired the shell casings found at the murder scene and
one bullet taken from Casey’s body. Defendant contends, however, that because
Cowan did not consider the literature reevaluating the reliability of toolmark
comparisons,3 it is not authority for the admissibility of Alvarado’s testimony. The
assertion begs the question: Cowan holds that toolmark comparison evidence is not
subject to challenge on the basis of its purported unreliability under Kelly (“there




3
       Defendant engages in a lengthy discussion on the subject, with citations to, among
other articles, National Research Council, Strengthening Forensic Science in the United
States: A Path Forward, 150-155 (2009), Schwartz, A Systematic Challenge to the
Reliability and Admissibility of Firearms and Toolmark Identification (2005) 6 Colum.
Sci. & Tech. L. Rev. 1, and the Tobin and Blau article presented in the trial court.
                                            12
was no need to debate the reliability of the method under . . . Kelly.” (Cowan,
supra, 50 Cal.4th at p. 471.) In short, Alvarado’s testimony was admissible.


                                 DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             COLLINS, J.




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