Filed 6/16/20
On transfer (B264402)
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                         DIVISION SEVEN


 In re                               B264402

 JUAN MARSHALL RAYFORD               (Los Angeles County
                                     Super. Ct. No. MA028053)
                 on Habeas Corpus.

 In re                               B303007

 DUPREE ANTOINE GLASS

                 on Habeas Corpus.


     ORIGINAL PROCEEDINGS; petitions for a writ of habeas
corpus. Robert J. Perry, Judge. Petitions granted.

      Law Offices of Annee Della Donna and Annee Della Donna
for Petitioners.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Noah P. Hill, Deputy
Attorneys General, for Respondent.
       A jury convicted codefendants Juan Marshall Rayford and
Dupree Antoine Glass of 11 counts of attempted willful,
deliberate, and premeditated murder and one count of shooting at
an inhabited dwelling based on their participation in a 2004
shooting at the home of Sheila Lair. On direct appeal, we
affirmed Rayford’s and Glass’s convictions but vacated the gang
and firearm enhancements. (People v. Rayford (July 18, 2006,
B179017) [nonpub. opn.] (Rayford I).)
       On May 29, 2015 Rayford filed a petition for writ of habeas
corpus, in part arguing the jury was improperly instructed on the
“kill zone” theory of concurrent specific intent to prove the 11
counts of attempted murder. After we denied the petition, the
California Supreme Court granted review but deferred action
pending consideration of the kill zone theory in People v.
Canizales (2019) 7 Cal.5th 591, 597 (Canizales). (In re Rayford
(Nov. 24, 2015, S229536).) The Supreme Court likewise deferred
action on Glass’s March 9, 2017 petition for writ of habeas
corpus. (In re Glass (Sept. 18, 2019, S240520).)
       On June 24, 2019 the Supreme Court held in Canizales
that “a jury may convict a defendant under the kill zone theory
only when the jury finds that: (1) the circumstances of the
defendant’s attack on a primary target, including the type and
extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create a
zone of fatal harm—that is, an area in which the defendant
intended to kill everyone present to ensure the primary target’s
death—around the primary target and (2) the alleged attempted
murder victim who was not the primary target was located
within that zone of harm.” (Canizales, supra, 7 Cal.5th at
pp. 596-597.)




                                2
      On September 18, 2019 the Supreme Court transferred
Rayford’s case to this court with directions to vacate our prior
order denying the petition for writ of habeas corpus and “to
reconsider the petition in light of [Canizales].” (In re Rayford,
supra, S229536.) Also on September 18, 2019 the Supreme Court
denied Glass’s petition for writ of habeas corpus “without
prejudice to filing the petition in the Court of Appeal, Second
Appellate District, for consideration of our opinion in
[Canizales].” (In re Glass, supra, S240520.) Glass filed a petition
for writ of habeas corpus in this court on December 13, 2019. On
December 18, 2019 we issued an order to show cause why relief
should not be granted.
      We conclude Canizales applies retroactively to Rayford’s
and Glass’s convictions. Further, this is not one of the “relatively
few cases in which the [kill zone] theory will be applicable and an
instruction appropriate.” (Canizales, supra, 7 Cal.5th at p. 608.)
It was prejudicial error for the trial court to instruct the jury on
the kill zone theory, and we now grant the petitions.

      FACTUAL AND PROCEDURAL BACKGROUND

A.    The Information
      In 2004 an information charged Rayford and Glass with 11
counts of attempted willful, deliberate, and premeditated murder
(Pen. Code, §§ 187, subd. (a), 664)1 and one count of shooting at
an inhabited dwelling (§ 246). Each attempted murder count
named a single victim: Kimberly Lair (count 1), Sheila Lair


1     All further statutory references are to the Penal Code.




                                 3
(count 2), Darrel Edward2 (count 3), Donisha Williams (count 4),
Jasmin Thompson (count 5), Shadonna Williams (count 6), Terry
Watson (count 7), Ebony Howard (count 8), Jerterry Burns (count
9), Donte Burns (count 10), and Jermaine Cooper (count 11).3 As
to all counts, the information alleged Rayford and Glass
committed the offenses for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)), a
principal personally used a firearm (§ 12022.53, subds. (b) &
(e)(1)), and a principal personally and intentionally discharged a
firearm (§ 12022.53, subds. (c) & (e)(1)).4

B.    The Evidence at Trial5
      1.    The People’s case
      On the night of January 2, 2004, 18-year-old Rayford and
17-year-old Glass were at a party. There they saw 15-year-old
Donisha with her adult sister Shadonna and 17-year-old cousin
Perry. Donisha, Shadonna, and their sister Shontel Williams
lived with their mother, Sheila. Glass had known Donisha and


2     Although the information refers to Darrel as “Darrell,” we
use the spelling from the trial testimony.
3     We refer to the alleged victims by their first names to avoid
confusion because some share a last name.
4     Although the information does not allege the gang and
firearm enhancements as to count 11 (Jermaine), the jury found
the allegations true as to all counts. The record does not reflect
whether the information was amended before trial.
5      We take the discussion of the evidence at trial principally
from Rayford I, supra, B179017, with additional facts from the
trial record filed as exhibits to the petitions filed by Rayford and
Glass.




                                  4
her family for several years and had eaten many meals at the
family’s house in the past year. Sheila described Glass as “a part
of our family.” Glass’s sister went to school with one of Sheila’s
daughters; Rayford went to school with another. Rayford and
Glass sometimes visited Sheila’s house together. Glass and Perry
were also friends.
      During the party Glass and Perry began to argue. Glass
gathered some people, including Rayford, to confront Perry
outside. Donisha, Shadonna, and Perry got in a car to leave.
Someone tried to reach into the car and grab Perry. Rayford was
yelling. Shadonna drove away. Shadonna and Donisha dropped
Perry off at their grandmother’s house and returned to their own
house sometime after 1:00 in the morning.
      Shortly thereafter Glass called Donisha on her mobile
phone walkie-talkie. Glass and Donisha frequently
communicated in this manner. Glass asked where Perry was,
explaining he wanted to fight him. Donisha told Glass that Perry
was at her grandmother’s house. Glass repeated his question
several times, and Donisha felt Glass thought she was lying.
Donisha invited Glass to her house to see for himself Perry was
not there.
      Ten minutes later, at around 1:30 a.m., Glass called
Donisha and told her he was at her house. Donisha and
Shadonna exited their house as Glass’s car and two other cars
pulled up. Glass, Rayford, and many other young men exited the
cars. Glass directed Donisha to tell Perry “to come outside and
catch a fade,” meaning to fight Glass. But Perry was not in the
house. Donisha and Shadonna went back inside to wake up their
mother. Also in the house were Shontel; Sheila’s sister Kimberly;
Kimberly’s boyfriend; and Sheila’s nieces and nephews Ebony,




                                5
Jasmin, Jermaine, Jeterry,6 Kevante, and Donte; as well as
Sheila’s two neighbors, Terry and Darrel.7 The family members
and neighbors ranged in age from six to 21 years old.
       Sheila exited the front door, and “[m]ore than a few” of the
people in the house followed her outside, including Donisha,
Terry, and Darrel. As she walked outside, Sheila saw a large
group of young men standing in the street and on her lawn.8
Sheila’s house was on a corner lot and had a south-facing front
door. She stood in “the middle of the grass” in her front yard.
Sheila recognized Glass, Rayford, and “Fat Man” standing on the
grass. Fat Man stood to her left (on the east side of the house),
while Glass stood in front of her, and Rayford stood to her right
(to the west) at the edge of the yard near a tree.
       Glass told Sheila “to send [Perry] outside.” Sheila told him
Perry was not there and there would be no fight. As Glass
approached Sheila, Sheila told “the kids to go back in the house.”
While Sheila spoke with Glass, a man identified as De’Antwan
and another man ran behind Sheila and struck Terry. Sheila
attempted to corral her family and neighbors back inside by
“walking backwards with [her] arms out pushing all the kids to
go back in the house.”
       From an area to Sheila’s left, where Fat Man was standing,
gunshots were fired. Sheila heard the bullets hit the house.

6   We assume Jeterry is the same person as “Jerterry Burns”
named in count 9 of the information.
7     Shontel and Kevante were not named as victims in the
information.
8     Sheila estimated there were 20 to 25 young men present
but also stated it “could have been” as few as 11 or 13, while
Donisha estimated there were 10 or 11.




                                 6
Then Glass started shooting “directly towards the house” from his
position in front of Sheila. At this point Glass was standing
about 33 feet from Sheila, on the grass near the sidewalk. Sheila
saw a shot fired from where Glass was standing toward the first
story front window. Sheila also saw a flash from where Rayford
stood to Sheila’s right. She did not see Rayford holding a gun but
believed he fired more than one shot “up in the air,” aiming above
the roof of the garage. Sheila “started pushing” those gathered
near the front door into the house, backing up to the concrete
surface near her front door. Some of those gathered ran into the
house, others dropped to the ground and tried to crawl to the
house. Shots “came towards” Sheila and struck the wall near
her, but they did not hit her. But Darrel was struck in the leg
with a bullet.
       Donisha testified Rayford fired the first shot “straight up”
in the air. Glass fired into the front window. No one was
standing in front of the window, but one of Donisha’s cousins was
looking out the window.9 Donisha could not tell how many of the
group near the front door were able to get back inside during the
gunfire. Inside the house, Sheila’s sister Kimberly was lying
down in the second floor west bedroom when she heard five or six
gunshots. As she stood, a bullet grazed her back and landed on
her bed. Kimberly ran downstairs, and Sheila told her Glass had
“shot up” the house. About 45 minutes after the shooting,
Kimberly called Glass and asked why he had fired at their house,
explaining she was injured. Glass responded, “That’s what you
bitches get.”



9     Donisha did not identify by name the cousin in the window.




                                7
       Los Angeles County Sheriff’s Deputy Ed Anderson
investigated the crime scene and found evidence eight bullets
struck the house. Four were fired from east to west, and four
were fired from south to north. The bullet that grazed Kimberly’s
back traveled east to west, striking “the fascia board above the
front window,” then traveled through the second floor east
bedroom where it was “deflected” by the bedroom’s bunk bed,
penetrating seven walls before reaching Kimberly in the second
floor west bedroom. A second bullet traveled east to west
through the wooden frame of the front living room window,
striking the interior ballast above the front door. A third bullet
from the same direction struck the wooden molding to the east
exterior wall at the main entrance. A fourth bullet travelled east
to west and struck the exterior wall to the west of the front door.
       A bullet travelled south to north and pierced the glass in
the front living room window, striking the north dining room wall
inside. A bullet from the same direction struck the exterior wall
at the main entrance 30 inches above the ground and entered the
house through “the right wall as you are walking in.” A third
south-to-north bullet traveled through the front exterior wall into
the living room wall about 47 inches above the ground. A fourth
struck the exterior wall just west of the main entrance about 74
inches above the ground. Although Deputy Anderson determined
the gunfire originated from two general directions (east to west
and south to north), he could not determine the number of
shooters.10 However, he opined the northerly fire could be
consistent with two shooters firing from south to north.


10    Detective Anderson also did not opine on the type of guns
that were fired.




                                8
     The People also presented evidence Rayford and Glass were
members of criminal street gangs. But there was no evidence
anyone at the scene uttered gang slogans or displayed gang signs.

      2.     The defense case
      Rayford testified he went to the party with Glass and later
went to Donisha’s house to watch Glass fight Perry. He did not
bring a gun. When he arrived at Donisha’s house, he got out of
the car and stood nearby. Rayford saw Glass speak with Sheila
by the front door of the house. He also saw De’Antwan and
others fighting. Then he heard seven to eight gunshots, but he
did not see who fired. Rayford got back in the car and ducked
down. About a minute later Glass got in the car, and they drove
to Rayford’s house. Rayford did not see Glass with a gun. He
denied he was a member of a gang.
      Glass testified he had a verbal argument with Perry at the
party and went to Donisha’s house afterward. Glass admitted he
went to the house with Rayford and others to fight Perry but
denied he brought a gun. Glass was standing a foot away from
the front door, fighting with neighbors Terry and Darrel, when he
heard five to seven gunshots. He did not recognize the man who
was shooting. Glass dropped to the ground. Glass then drove to
Rayford’s house, where he received a walkie-talkie call from
Kimberly. She stated, “We [are] going to kill you if you don’t tell
us who did it.” Glass denied making the statement Kimberly
attributed to him. Glass also denied telling sheriff’s deputies he
was a member of a gang.
      Glass’s father, Mark Glass, testified he visited Sheila at her
house shortly after the shooting. Sheila told Mark she was
talking to Glass when “someone started firing a gun off in the




                                 9
back of her.” Sheila did not identify Glass as a shooter to Mark.
Mark did not tell the police about this conversation with Sheila.

C.     Jury Instructions and Closing Argument
       The trial court instructed the jury with CALJIC No. 8.66.1,
that to convict a defendant of attempted murder it must find “1.
A direct but ineffectual act was done by one person towards
killing another human being; and [¶] 2. The person committing
the act harbored express malice aforethought, namely, a specific
intent to kill unlawfully another human being.” The court
instructed further, “A person who primarily intends to kill one
person, may also concurrently intend to kill other persons within
a particular zone of risk. This zone of risk is termed the ‘kill
zone.’ The intent is concurrent when the nature and scope of the
attack, while directed at a primary victim, are such that it is
reasonable to infer the perpetrator intended to ensure harm to
the primary victim by harming everyone in that victim’s vicinity.
[¶] 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.”
       During his closing argument, the prosecutor explained the
kill zone theory: “What we are talking about is an idea known as
concurrent intent. And again, you mainly intend to kill one
[person], but at the same time, you can be found guilty of
intending to kill everyone in what’s known as a kill zone, a zone
of risk. Around that person. [¶] And what you do is you look at
the facts to determine if this is present. . . . Where were these
people? In this case, they were gathered around the front door
when the shots started. They were crawling inside the house as
the shots continued. [¶] The idea was whether Rayford and




                                10
Glass intended to ensure harm to their intended victim in a way
that exposed everyone in their vicinity to harm.” The prosecutor
noted the bullets had traveled through the walls and entered the
house, adding, “This incident involves what appears to be the
majority of the living space in this house. And that is the concept
I was describing when we were talking about kill zone. It’s not
just the front door area.”
       The prosecutor continued, “Perry is not a named victim in
this case. It’s not the prosecution’s theory that Perry is even the
primary victim in this case. Perry wasn’t there. . . . [¶] The
victims in this case are the named victims. We have three
victims, primary victims. One of them [was] Sheila Lair because
she was directly confronting these two gang members, and then
we have the other two that I would regard as primary victims
because they were struck by gunfire [Darrel and Kimberly], but
the main focus of that attack at that point when the shots were
fired and the triggers were pulled was Sheila Lair. Sheila Lair is
your primary victim here.”

D.     The Verdict and Sentencing
       The jury convicted Rayford and Glass of 11 counts of
attempted willful, deliberate, premeditated murder and one
count of shooting at an inhabited building. The jury found true
all the special allegations. The trial court sentenced each
defendant to 11 consecutive life sentences for the attempted
murders plus 220 years on the firearm enhancements (20 years
on each count under § 12022.53, subds. (c) & (e)). The court
stayed the sentences on the gang enhancements and on count 12
for shooting at an inhabited dwelling.




                                11
E.     Defendants’ Direct Appeal
       In Rayford I, Rayford argued there was insufficient
evidence to support the attempted murder convictions under the
kill zone theory because there was not sufficient evidence of a
primary target or a kill zone.11 We concluded the evidence was
sufficient, reasoning, “Simply because [People v. Bland (2002)
28 Cal.4th 313, 329-330] involved a single primary target does
not necessarily mean the theory of concurrent intent only applies
when a primary target is identified. In this case, substantial
evidence supports a finding there were several potential primary
targets. The shooters could have targeted Sheila because she
disrespected Glass by telling him there would be no fighting at
her house that night. Sheila’s neighbor Terry could have been
the primary target given the evidence members of defendants’
group started a fist fight with Terry for some unidentified reason.
The jury could have drawn the inference there was preexisting ill
will between Terry, on the one hand, and defendants and their
associates, on the other hand. Finally, the shooters could have
targeted Sheila, Donisha and Shadonna for lying about Perry’s
whereabouts and trying to protect him. . . .” (Rayford I, supra,
B179017.)
       We explained further, “Based on the bullet impacts on the
house, there was substantial evidence bullets were fired toward
the front door of the house where victims were trying to retreat.


11    Rayford argued there was not substantial evidence to
support instruction of the jury on the kill zone theory of
concurrent intent; Glass argued the trial court erroneously
instructed the jury on concurrent intent in a manner that allowed
the jury to convict him without the specific intent to kill each of
the 11 victims.




                                12
The evidence shows a bullet hit Darrel as he was trying to get
inside (or after he already had gotten back inside). Bullets also
traveled through walls, placing those inside at risk. Kimberly
was standing in an upstairs bedroom when a bullet grazed her
back. Despite Rayford’s urging, we are not persuaded there was
no kill zone based simply on the fact no one was killed or
seriously injured. The manner in which the bullets were fired
indicates an intent to harm everyone in the vicinity.” (Rayford I,
supra, B179017.)12
       We affirmed Rayford’s and Glass’s convictions but vacated
the gang enhancements, concluding there was insufficient
evidence of the gangs’ “primary activities” under section 186.22,
subdivision (f), to support the gang allegation. Because the
firearm enhancements were dependent on the gang
enhancements, we vacated the firearm enhancements as well.
We affirmed the judgments as modified.

F.    Rayford’s Petition for Writ of Habeas Corpus
      On May 29, 2015 Rayford filed a petition for writ of habeas
corpus, in which he argued the trial court erred in instructing the
jury on the kill zone theory of concurrent specific intent in light of
recent case authority and he received ineffective assistance of
counsel. On September 16 we denied the petition “without
prejudice to refiling in this court to the extent it is determined, in


12    We also rejected Glass’s contention the trial court’s use of
CALJIC No. 8.66.1, in conjunction with CALJIC No. 3.01 on aider
and abettor liability, was erroneous because it allowed the jury to
convict him of 11 counts of attempted murder without finding he
had the specific intent to kill each of the victims. (Rayford I,
supra, B179017.)




                                 13
cases pending in the California Supreme Court, that [Rayford]
may be entitled to relief.” The Supreme Court granted review
but deferred taking action pending consideration and disposition
of the related issue in Canizales. (In re Rayford, supra, S229536.)
       Following the Supreme Court’s decision in Canizales,
supra, 7 Cal.5th 591, on September 18, 2019 the Supreme Court
transferred the matter back to this court “with directions to
vacate [this court’s] September 16, 2015, order denying the
petition for writ of habeas corpus and to reconsider the petition in
light of [Canizales].” Following supplemental briefing, on
November 13, 2019 we issued an order to show cause why relief
should not be granted. The People filed a return, and Rayford
filed a traverse.

G.     Glass’s Petition for Writ of Habeas Corpus
       On March 9, 2017 Glass filed a petition for a writ of habeas
corpus in the Supreme Court. On September 18, 2019, “[i]n
conjunction with [the] court’s decision in Rayford on Habeas
Corpus,” the Supreme Court denied Glass’s petition for writ of
habeas corpus “without prejudice to filing the petition in the
Court of Appeal, Second Appellate District, for consideration of
our opinion in [Canizales].” (In re Glass, supra, S240520.) Glass
filed a petition for writ of habeas corpus with this court on
December 13, 2019. On December 18 we issued an order to show
cause why relief should not be granted. The People filed a
return, and Glass filed a traverse.




                                14
                          DISCUSSION

A.     The Kill Zone Theory of Concurrent Intent To Kill
       “To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’” (Canizales, supra, 7 Cal.5th at p. 602; accord, People v.
Covarrubias (2016) 1 Cal.5th 838, 890; People v. Perez (2010)
50 Cal.4th 222, 224 [“[S]hooting at a person or persons and
thereby endangering their lives does not itself establish the
requisite intent for the crime of attempted murder.”].) “[A]n
intent to kill cannot be ‘transferred’ from one attempted murder
victim to another under the transferred intent doctrine.”
(Canizales, at p. 602; accord, People v. Bland, supra, 28 Cal.4th at
pp. 327-328 (Bland).)
       The Supreme Court first articulated the kill zone theory of
attempted murder in Bland, supra, 28 Cal.4th at pages 329-330,
holding, “‘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. . . .
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.’” The Supreme
Court in Bland gave as examples of appropriate applications of
the kill zone theory where an assailant places a bomb on a
commercial plane intending to harm a primary target on the
plane by killing all the passengers and where a defendant attacks
a group of people by using “‘automatic weapon fire or an explosive




                                15
device devastating enough to kill everyone in the group.’” (Id. at
p. 330, quoting Ford v. State (1993) 330 Md. 682, 717 [625 A.2d
984, 1000-1001].) In these scenarios, “‘[t]he defendant has
intentionally created a “kill zone” to ensure the death of his
primary victim, and 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.’” (Bland, at p. 330.)
        In Bland, the court found that where the defendant and a
second shooter fired a flurry of bullets at a fleeing car in order to
kill the driver, injuring two passengers, the evidence “virtually
compels” an inference the defendant created a kill zone that
would support attempted murder convictions as to both
passengers. (Bland, supra, 28 Cal.4th at pp. 330-331, 333.)
        By contrast, in People v. Perez, supra, 50 Cal.4th at page
232, the Supreme Court concluded the defendant had not created
a kill zone where he fired a single shot from a moving car at a
group of eight individuals 60 feet away, therefore supporting only
one, not eight, counts of attempted murder. The Supreme Court
explained, “‘[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 of
that victim.’” (Ibid.; see People v. Stone (2009) 46 Cal.4th 131,
135 [trial court erred by instructing on kill zone theory where
defendant shot a single bullet at alleged victim standing in group
of 10 rival gang members 60 feet away from defendant].)
        The Supreme Court revisited the kill zone theory in
Canizales, supra, 7 Cal.5th 591, in which it narrowed application
of the doctrine. The Supreme Court held, “[T]he kill zone theory




                                 16
for establishing the specific intent to kill required for conviction
of attempted murder may properly be applied only when a jury
concludes: (1) the circumstances of the defendant’s attack on a
primary target, including the type and extent of force the
defendant used, are such that the only reasonable inference is
that the defendant intended to create a zone of fatal harm—that
is, an area in which the defendant intended to kill everyone
present to ensure the primary target’s death—around the
primary target; and (2) the alleged attempted murder victim who
was not the primary target was located within that zone of harm.
Taken together, such evidence will support a finding that the
defendant harbored the requisite specific intent to kill both the
primary target and everyone within the zone of fatal harm. [¶]
In determining the defendant’s intent to create a zone of fatal
harm and the scope of any such zone, the jury should consider the
circumstances of the offense, such as the type of weapon used, the
number of shots fired (where a firearm is used), the distance
between the defendant and the alleged victims, and the proximity
of the alleged victims to the primary target. Evidence that a
defendant who intends to kill a primary target acted with only
conscious disregard of the risk of serious injury or death for those
around a primary target does not satisfy the kill zone theory.”
(Id. at p. 607.)
       The Canizales court cautioned, “[W]e anticipate there will
be relatively few cases in which the theory will be applicable and
an instruction appropriate. Trial courts should tread carefully
when the prosecution proposes to rely on such a theory, and
should provide an instruction to the jury only in those cases
where the court concludes there is sufficient evidence to support
a jury determination that the only reasonable inference from the




                                17
circumstances of the offense is that a defendant intended to kill
everyone in the zone of fatal harm. The use or attempted use of
force that merely endangered everyone in the area is insufficient
to support a kill zone instruction.” (Canizales, supra, 7 Cal.5th at
p. 608.)
       The Supreme Court clarified that “[w]hen the kill zone
theory is used to support an inference that the defendant
concurrently intended to kill a nontargeted victim . . . evidence of
a primary target is required.” (Canizales, supra, 7 Cal.5th at
p. 608.) The Canizales court cited approvingly to the language in
People v. Medina (2019) 33 Cal.App.5th 146, 155, that “‘[w]ithout
a primary target, there cannot be concurrent intent because there
is no primary intent to kill as to which the intent to kill others
could be concurrent.’” (Canizales, at p. 609.)
       Although the defendants in Canizales fired five shots from
a semiautomatic nine-millimeter gun at a group that included a
rival gang member (Denzell Pride) with whom one of the
defendants had engaged in a verbal altercation earlier that day,
the defendants were not “in close proximity to the area
surrounding their intended target,” but instead were positioned
100 to 160 feet away from a block party on a wide city street, and
the bullets were “‘going everywhere’” as Pride and fellow gang
member Travion Bolden ran away after the first shot was fired.
(Canizales, supra, 7 Cal.5th at pp. 610-611.) The Canizales court
concluded the evidence was not sufficient to allow the jury to find
the defendants intended to create a zone of fatal harm around
Pride, and it reversed the defendants’ convictions of the
attempted murder of Bolden. (Id. at pp. 611, 615.) The Supreme
Court distinguished these facts from those in other cases in
which “the defendants opened fire while in close proximity to the




                                18
area surrounding their intended target.” (Id. at pp. 610-611; see
Bland, supra, 28 Cal.4th at p. 318 [defendant fired flurry of
bullets directly into vehicle]; People v. Vang (2001)
87 Cal.App.4th 554, 564 [defendants sprayed 50 or more bullets
from high-powered, “wall-piercing” weapons at two separate
apartment buildings]; Washington v. U.S. (D.C. 2015) 111 A.3d
16, 24 [defendant fired 10 shots at four people standing in close
proximity to each other and 21 feet from defendant, hitting three
of the group].)

B.     Canizales Has Retroactive Effect
       The People contend the Supreme Court’s decision in
Canizales does not apply retroactively to final cases, such as
Rayford’s and Glass’s. We conclude it does.
       Generally, “[a] writ of habeas corpus will not issue for a
claim that was raised and rejected on appeal.” (In re Martinez
(2017) 3 Cal.5th 1216, 1222 (Martinez); accord, In re Reno (2012)
55 Cal.4th 428, 476 [“legal claims that have previously been
raised and rejected on direct appeal ordinarily cannot be reraised
in a collateral attack by filing a petition for a writ of habeas
corpus”]; In re Waltreus (1965) 62 Cal.2d 218, 225.) An exception
to the rule applies “‘when there has been a change in the law
affecting the petitioner.’” (Martinez, at p. 1222; accord, In re
Harris (1993) 5 Cal.4th 813, 841 [“a petitioner [may] raise in a
petition for writ of habeas corpus an issue previously rejected on
direct appeal when there has been a change in the law affecting
the petitioner”].) “To trigger this exception, the change in the law
must have retroactive effect.” (Martinez, at p. 1222; accord, In re
Lopez (2016) 246 Cal.App.4th 350, 357-359 (Lopez).) Because the
federal and state courts have applied a number of tests to




                                19
determine whether a change in law applies retroactively, we
review the historical landscape of the retroactivity jurisprudence.

      1.      The federal retroactivity tests under Linkletter and
              Teague
       Before the United States Supreme Court’s decision in
Linkletter v. Walker (1965) 381 U.S. 618, 629 (Linkletter), both
the common law and the United States Supreme Court
“‘recognized a general rule of retrospective effect for the
constitutional decisions of [the United States Supreme] Court . . .
subject to [certain] limited exceptions.’” (United States v.
Johnson (1982) 457 U.S. 537, 542; see Linkletter, at p. 622 [“At
common law there was no authority for the proposition that
judicial decisions made law only for the future.”].)
       Linkletter considered whether the rule announced in Mapp
v. Ohio (1961) 367 U.S. 643, applying the exclusionary rule for
evidence seized in violation of the Fourth Amendment to state
court prosecutions, should operate retroactively to cases that
were final prior to Mapp. (Linkletter, supra, 381 U.S. at p. 619.)
Linkletter directed courts to “weigh the merits and demerits in
each case by looking to the prior history of the rule in question,
its purpose and effect, and whether retrospective operation will
further or retard its operation.” (Id. at p. 629.) The Linkletter
court weighed these factors and concluded Mapp did not apply
retroactively on habeas corpus review, observing the purpose of
Mapp’s application of the exclusionary rule to the states to deter
illegal police action would not be served by retroactive
application. (Linkletter, at pp. 636-637.)
       For the following 20 years, the United States Supreme
Court applied Linkletter’s test to determine the retroactivity of




                                20
new decisional law to final judgments of conviction. (See, e.g.,
Allen v. Hardy (1986) 478 U.S. 255, 258-260 [concluding Batson v.
Kentucky (1986) 476 U.S. 79, which established a three-step
inquiry for determining whether the prosecution’s use of
peremptory challenges violated the defendant’s constitutional
rights, did not apply retroactively to final cases]; Stovall v. Denno
(1967) 388 U.S. 293, 297 [denying retroactivity of United States v.
Wade (1967) 388 U.S. 218 and Gilbert v. California (1967)
388 U.S. 263, which held a defendant has a right to counsel
during postindictment lineup for identification purposes].)
        In Teague v. Lane (1989) 489 U.S. 288, 302-304 (Teague), in
a plurality decision authored by Justice O’Connor, the United
States Supreme Court abandoned the Linkletter test for
retroactivity. (Teague, at pp. 302-304, 310.) The Teague court
explained as to cases on collateral review, “Unless they fall
within an exception to the general rule, new constitutional rules
of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced.” (Id. at
p. 310.) The court articulated two exceptions to retroactivity.
First, “a new rule should be applied retroactively if it places
‘certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe . . . .’”
(Id. at p. 311.) Second, a new rule should be applied retroactively
if it is a “watershed rule[] of criminal procedure” implicating the
fundamental fairness and accuracy of the proceeding. (Id. at
pp. 311-312.)
        A majority of the United States Supreme Court adopted the
Teague rule in Saffle v. Parks (1990) 494 U.S. 484 and clarified
Teague’s first exception applied to new substantive rules. (Saffle,
at p. 494; accord, Whorton v. Bockting (2007) 549 U.S. 406, 416




                                 21
[“A new rule applies retroactively in a collateral proceeding only
if (1) the rule is substantive or (2) the rule is a ‘“watershed rul[e]
of criminal procedure” implicating the fundamental fairness and
accuracy of the criminal proceeding.’”].) The United States
Supreme Court has since applied the Teague test to federal
substantive and procedural rules on collateral review. (See, e.g.,
Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718, 732]
[concluding Miller v. Alabama (2012) 567 U.S. 460, which held
the Eighth Amendment prohibits mandatory life sentences
without parole for juvenile offenders, applies retroactively on
collateral review under Teague because it is a substantive rule,
explaining a substantive rule “forbids ‘criminal punishment of
certain primary conduct’ or prohibits ‘a certain category of
punishment for a class of defendants because of their status or
offense’”]; Schriro v. Summerlin (2004) 542 U.S. 348, 351-352
[concluding the requirement in Ring v. Arizona (2002) 536 U.S.
584 that aggravating factors be proved to a jury instead of a
judge does not apply retroactively to final cases because it is a
procedural rule that does not fall within Teague’s exception for a
watershed rule of criminal procedure].)
        Further, although Teague “limits the kinds of constitutional
violations that will entitle an individual to relief on federal
habeas, [it] does not in any way limit the authority of a state
court, when reviewing its own state criminal convictions, to
provide a remedy for a violation that is deemed ‘nonretroactive’
under Teague.” (Danforth v. Minnesota (2008) 552 U.S. 264, 282;
accord, In re Gomez (2009) 45 Cal.4th 650, 655, fn. 3 [California
courts are “‘free to give greater retroactive impact to a decision
than the federal courts choose to give.’”].)




                                 22
      2.      California retroactivity analysis under Johnson and
              Mutch
       In In re Johnson (1970) 3 Cal.3d 404, 410 (Johnson), the
California Supreme Court applied a modified version of the
Linkletter test13 to conclude the United States Supreme Court’s
decision in Leary v. United States (1969) 395 U.S. 6 (Leary),
which held a defendant’s timely invocation of the privilege
against self-incrimination constituted a complete defense to a
prosecution for failure to pay a federal marijuana transfer tax,
applied retroactively on collateral review. The defendant had
been convicted of two counts of selling marijuana with two prior
convictions, one of which was a conviction under the federal
statute at issue in Leary. The Johnson court explained, “The
retrospective effect of a law-making opinion is to be determined
by ‘“(a) the purpose to be served by the new standards, (b) the
extent of the reliance by law enforcement authorities on the old
standards, and (c) the effect on the administration of justice of a
retroactive application of the new standards.”’” (Johnson, at
p. 410.) After surveying United States Supreme Court decisions
on retroactivity, the court reasoned, “Fully retroactive decisions
are [those] vindicating a right which is essential to a reliable
determination of whether an accused should suffer a penal
sanction.” (Id. at pp. 411-412.) The court added, “[T]he more
directly the new rule in question serves to preclude the conviction
of innocent persons, the more likely it is that the rule will be
afforded retrospective application.” (Id. at p. 413.) The Johnson
court emphasized that under Leary, persons who timely assert

13     The Johnson court adopted the modified Linkletter test as
set forth in Stovall v. Denno, supra, 388 U.S. at page 297.
(Johnson, supra, 3 Cal.3d at p. 410.)




                                23
the Fifth Amendment as a defense to the federal statute “are
innocent as a matter of law.” (Johnson, at p. 416.)
       Although the California Supreme Court in Johnson
considered whether the Leary court’s holding grounded in federal
constitutional law applied retroactively, California courts have
applied Johnson’s tripartite test to determine the retroactivity of
judicial decisions interpreting federal and California law. (See,
e.g., In re Brown (2020) 45 Cal.App.5th 699, 715, 722 [applying
Johnson to conclude People v. Gallardo (2017) 4 Cal.5th 120,
which held a trial court may not make factual findings beyond
those established by the conviction to increase a sentence, applied
retroactively to final cases]; In re Milton (2019) 42 Cal.App.5th
977, 989, review granted Mar. 11, 2020, S259954 [applying
Johnson and Teague to conclude Gallardo did not apply
retroactively to final cases]; In re Thomas (2018) 30 Cal.App.5th
744, 753-761 [concluding People v. Sanchez (2016) 63 Cal.4th 665,
which held an expert witness’s out-of-court testimonial
statements about case-specific facts violates the confrontation
clause, did not apply retroactively under Johnson, declining to
apply Teague as not binding on state habeas corpus review]; In re
Ruedas (2018) 23 Cal.App.5th 777, 793-803 [concluding Sanchez
did not apply retroactively under Johnson or Teague]; In re
Hansen (2014) 227 Cal.App.4th 906, 919 (Hansen) [giving
retroactive effect on habeas corpus review to new rule enunciated
in People v. Chun (2009) 45 Cal.4th 1172 (Chun) that shooting at
inhabited dwelling could not support second degree felony-
murder conviction, because Chun precluded the conviction of




                                24
innocent persons by narrowing the class of conduct that may
constitute second degree murder].)14
       A year after deciding Johnson, the California Supreme
Court in People v. Mutch (1971) 4 Cal.3d 389, 394 (Mutch)
confronted the issue of retroactivity with respect to a change in
the judicial interpretation of California statutory law.
Specifically, in People v. Daniels (1969) 71 Cal.2d 1119 (Daniels),
the California Supreme Court held movement of a victim in the
course of a robbery that does not substantially increase the risk
of harm above that necessary to commit the robbery does not
satisfy the asportation element of aggravated kidnapping,
thereby overruling its decision in People v. Chessman (1951)
38 Cal.2d 166. (Daniels, at p. 1139.)
       The Mutch court concluded the Daniels decision applied
retroactively to cases that were final, explaining “‘a defendant is
entitled to habeas corpus if there is no material dispute as to the
facts relating to his conviction and if it appears that the statute
under which he was convicted did not prohibit his conduct.’”
(Mutch, supra, 4 Cal.3d at p. 396; accord, Woosley v. State of
California (1992) 3 Cal.4th 758, 794 (Woosley) [giving retroactive
effect to holding that class action claims for refund of state
vehicle license fees and use taxes were not authorized under state

14     Most cases have applied the Johnson test to procedural
rules, although the Court of Appeal in Hansen applied Johnson to
Chun’s interpretation of California substantive law. (Hansen,
supra, 227 Cal.App.4th at p. 919, fn. 3 [observing the Johnson
test “appears tailored to procedural, and not substantive, changes
in criminal law”].) The court declined to apply the retroactivity
test established in People v. Mutch (1971) 4 Cal.3d 389,
applicable to substantive changes in the law, because the parties
did not brief the issue. (Hansen, at p. 919, fn. 3.)




                                25
law]; In re Miller (2017) 14 Cal.App.5th 960, 979 [California
Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th
788 and People v. Clark (2016) 63 Cal.4th 522, which limited the
circumstances under which an aider and abettor to a murder
under the felony-murder doctrine may be sentenced to life in
prison without the possibility of parole, applied retroactively
under Mutch because the decisions “did not create new law; they
simply stated what section 190.2, subdivision (d) [defining special
circumstance murder] has always meant”].)
       In finding Daniels retroactive, the Mutch court observed
the decision “did not overturn a judge-made rule of common law,”
but rather, it “recognized a statutory rule . . . to which courts had
not previously given appropriate effect.” (Mutch, supra, 4 Cal.3d
at p. 394.) The California Supreme Court in Woosley later
described the Mutch decision as one not involving a new rule of
law because it gave effect “‘to a statutory rule that the courts had
theretofore misconstrued.’” (Woosley, supra, 3 Cal.4th at p. 794;
accord, Hansen, supra, 227 Cal.App.4th at p. 916 [Mutch
determined its “new interpretation of the aggravated kidnapping
statute was not a change in the law at all”].) The Woosley court
explained, “‘Whenever a decision undertakes to vindicate the
original meaning of an enactment, putting into effect the policy
intended from its inception, retroactive application is essential to
accomplish that aim.’” (Woosley, at p. 794.)
       The Mutch court declined to “undertake the often perilous
task of applying . . . the test of ‘retroactivity’ developed in a well-
known series of decisions of the United States Supreme Court,”
citing to Linkletter and other United States Supreme Court
decisions applying the Linkletter test. (Mutch, supra, 4 Cal.3d at
pp. 394-395.) The court distinguished those cases as “primarily




                                  26
concerned with such matters as the control of improper police
practices,” exclusion of tainted evidence, and the “reform of
procedural rules affecting the reliability of the fact-finding
process.” (Ibid.)

       3.    The California Supreme Court’s decision in Martinez
       Most recently, the California Supreme Court in Martinez,
supra, 3 Cal.5th at page 1222 considered whether its decision in
People v. Chiu (2014) 59 Cal.4th 155 (Chiu) applied retroactively
on collateral review. The Supreme Court in Chiu held the
natural and probable consequences theory of aider and abettor
liability cannot be relied on to convict a defendant of first degree
premeditated murder. (Chiu, at p. 167.) The Martinez court
concluded Chiu had retroactive effect, reasoning “a change in the
criminal law will be given retroactive effect when a rule is
substantive rather than procedural (i.e., it alters the range of
conduct or the class of persons that the law punishes, or it
modifies the elements of the offense) or when a judicial decision
undertakes to vindicate the original meaning of the statute.”
(Martinez, at p. 1222.) In so holding, the Supreme Court
implicitly applied the Teague and Mutch retroactivity tests, citing
with approval to the Court of Appeal’s decision in Lopez, supra,
246 Cal.App.4th at pages 357-359, which applied Teague and
Mutch to conclude Chiu was retroactive on habeas corpus review.
(Martinez, at p. 1222.)15


15   Although the Martinez court indirectly referred to the
Mutch analysis in articulating the standard for retroactivity (as
when a judicial decision undertakes to vindicate the original
meaning of the statute), the Supreme Court distinguished Mutch




                                27
       Applying Teague,16 the Lopez court reasoned, “The Chiu
decision set forth a new rule of substantive law by altering the
range of conduct for which a defendant may be tried and
convicted of first degree murder.” (Lopez, supra, 246 Cal.App.4th
at p. 358.) The Lopez court alternatively found the Chiu decision
retroactive under Mutch, reasoning, “By limiting the scope of
aider and abettor liability in the commission of murder, the court
in Chiu was, in effect, engaging in statutory interpretation and
declaring the Legislature’s intent just as the court in Mutch did
for the aggravated kidnapping statute.” (Lopez, at p. 359.) The
Lopez court discussed but did not apply the tripartite Johnson
test, describing it as the “test for determining retroactivity of
judicial opinions involving questions of procedure.” (Lopez, at
p. 359, fn. 2.)

      4.    Canizales is retroactive on habeas corpus review
            under federal and state retroactivity analyses
      We apply the approach taken by Martinez and Lopez and
consider the retroactivity of Canizales under Mutch and Teague.
Like Mutch (and Martinez), the holding in Canizales rests on an
interpretation of substantive California criminal law. “In


on the basis the defendant there was actually innocent of
kidnapping because the statute did not proscribe his conduct,
whereas the defendant in Martinez could be retried for first
degree murder consistent with Chiu under a different theory of
aider and abettor liability. (Martinez, supra, 3 Cal.5th at
pp. 1223-1224.)
16   The Lopez court cited to Schriro v. Summerlin, supra,
542 U.S. at pages 351-354 for its Teague analysis. (Lopez, supra,
246 Cal.App.4th at p. 357.)




                                28
California all crimes are statutory and there are no common law
crimes. Only the Legislature and not the courts may make
conduct criminal.” (In re Brown (1973) 9 Cal.3d 612, 624; accord,
Lopez, supra, 246 Cal.App.4th at p. 359 [“Murder, as all crimes in
California, is statutory, as are the degrees of murder and the
punishment.”]; see § 6 [“No act or omission . . . is criminal or
punishable, except as prescribed or authorized by this
code . . . .”].) As such, attempted willful, deliberate, and
premeditated murder is a statutorily defined offense. (§§ 187
[defining murder], 188 [defining malice], 664 [criminalizing
attempts to commit a crime].)
       Further, as in Mutch and Martinez, the Canizales decision
“undertakes to vindicate the original meaning of the statute.”
(Martinez, supra, 3 Cal.5th at p. 1222.) As discussed, the
Supreme Court in Bland endorsed the kill zone theory of
concurrent intent to kill to prove attempted premeditated
murder. (Bland, supra, 28 Cal.4th at pp. 329-330.) But in
Canizales, the Supreme Court limited application of the kill zone
theory to correct the overbroad application of the theory by
several Courts of Appeal. (Canizales, supra, 7 Cal.5th at pp. 602,
607 [court “granted review in light of the conflict in the Courts of
Appeal regarding the evidentiary basis for applying, and
instructing on, the kill zone theory for establishing the intent to
kill element of attempted murder”]; People v. Cerda (2020)
45 Cal.App.5th 1, 4, review granted May 13, 2020, S260915
[Canizales “limited the application of the kill zone theory”].) By
limiting the scope of liability for attempted premeditated murder
under the theory of concurrent intent to kill, the California
Supreme Court in Canizales was declaring the Legislature’s
intent, as the Supreme Court had done in Chiu as to aider and




                                29
abetter liability and in Mutch as to the aggravated kidnapping
statute. (See Lopez, supra, 246 Cal.App.4th at p. 359.) And, as in
Chiu, the Canizales court resolved an outstanding issue of law
without expressly overturning past precedent or disapproving
specific decisions of the Courts of Appeal. (See Chiu, supra,
59 Cal.4th at p. 163.) Indeed, the Canizales court described its
holding as “consistent with Bland.” (Canizales, at p. 607.)
       We reach the same conclusion under Teague because the
rule in Canizales is substantive. “A rule is substantive rather
than procedural if it alters the range of conduct or the class of
persons that the law punishes” or “modifies the elements of an
offense.” (Schriro v. Summerlin, supra, 542 U.S. at pp. 353-354;
accord, Montgomery v. Louisiana, supra, 577 U.S. at p. ___
[136 S.Ct. at p. 733].) Similar to Chiu, the Canizales court
altered the range of conduct for which a defendant may be tried
and convicted of attempted premeditated murder by holding trial
courts should only instruct the jury on the kill zone theory of
concurrent intent where “there is sufficient evidence to support a
jury determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill
everyone in the zone of fatal harm.” (Canizales, supra, 7 Cal.5th
at p. 608; see Lopez, supra, 246 Cal.App.4th at p. 358; cf. In re
Milton, supra, 42 Cal.App.5th at pp. 989, 992 [concluding the rule
articulated in People v. Gallardo, supra, 4 Cal.5th 120 is
procedural under Teague]; In re Ruedas, supra, 23 Cal.App.5th at
pp. 793, 798 [concluding the rule articulated in People v. Sanchez,
supra, 63 Cal.4th 665 is procedural under Teague].)
       Although we focus on the Mutch and Teague retroactivity
tests, we note Johnson’s tripartite test for retroactivity also
militates strongly in favor of retroactivity because the purpose of




                                30
the rule announced in Canizales, of ensuring the reliability of a
conviction for attempted premeditated murder, is not collateral to
the guilt or innocence of a defendant (Johnson, supra, 3 Cal.3d at
p. 415), but rather, ensures the reliability of an attempted
premeditated murder conviction by requiring the defendant have
acted with the specific intent to kill everyone in the kill zone.
(Canizales, supra, 7 Cal.5th at p. 597; see Hansen, supra,
227 Cal.App.4th at p. 919 [“The purpose of Chun was to separate
those actions that are punishable as second degree murder from
those that are not.”].) Where the purpose of the rule strongly
favors retroactivity, “this factor often is conclusive even if there is
a considerable burden on the administration of justice.”
(Johnson, at p. 416.)17
      The People also contend Canizales expressly made its
holding prospective only by discussing its application in “future
cases” and instructing trial courts to exercise caution applying
the doctrine “going forward.” (Canizales, supra, 7 Cal.5th at


17     The People’s reliance on People v. Guerra (1984) 37 Cal.3d
385 is misplaced. The Guerra court addressed on direct appeal
whether to make “an exception to ‘the ordinary assumption of
retrospective operation.’” (Guerra, at p. 401.) The court
explained where there is no prior rule to the contrary, “the new
rule applies in all cases not yet final.” (Id. at p. 399.) This
category includes cases “‘resolv[ing] a conflict between lower
court decisions, or address[ing] an issue not previously presented
to the courts.’” (Id. at p. 400.) As the Guerra court reasoned, in
those cases “there was no clear rule on which anyone could have
justifiably relied.” (Ibid.) The decision in Canizales falls
squarely within the class of decisions articulating a new rule to
resolve a conflict in the Courts of Appeal where there was no
prior controlling rule to the contrary.




                                  31
pp. 606, 608.) In so arguing, the People rely on Sumner v.
Workers’ Comp. Appeals Bd. (1983) 33 Cal.3d 965, Isbell v.
County of Sonoma (1978) 21 Cal.3d 61, and Li v. Yellow Cab Co.
(1975) 13 Cal.3d 804. But in each of those cases the Supreme
Court expressly disclaimed retroactive effect of the change in law,
concluding specific policy concerns weighed in favor of prospective
application only. (See Sumner, at p. 972 [“We make this
declaration prospective—from and after the date our opinion
becomes final—so as to avoid unfairness to parties who have
relied upon the presumed validity of the present [claims release
form], and the burden upon the workers’ compensation system
which would result from retroactive application.”]; Isbell, at p. 75
[“our decision should be given a limited retroactive application to
permit any judgment debtor to apply for a hearing challenging
the validity of the waiver in his confession of judgment”]; Li, at
p. 829 [“[W]e hold that the present opinion shall be applicable to
all cases in which trial has not begun before the date this decision
becomes final in this court, but that it shall not be applicable to
any case in which trial began before that date . . . .”].) Canizales’s
guidance to trial courts stands in sharp contrast to these express
statements rejecting any retroactive effect. Further, the
Supreme Court’s transfer of Rayford’s petition to this court and
denial of Glass’s petition without prejudice to filing a petition in
this court for consideration of the Canizales decision show the
Canizales court did not intend to resolve the question of
retroactivity. (In re Rayford, supra, S229536; In re Glass, supra,
S240520.)




                                 32
C.     Under Canizales, the Evidence at Trial Was Not Sufficient
       To Instruct the Jury on the Kill Zone Theory
       Rayford and Glass contend under Canizales the
circumstances of the shooting did not support the trial court
instructing the jury on the kill zone theory. Rather, they assert
the only reasonable inference supported by the evidence is that
the shooters fired on the house “to scare the Lair family, or send
a message to Perry, or [as] a demonstration of force or to stop the
fistfight,” thus lacking the specific intent to kill the group
assembled on the lawn and in the house. We agree.
       As discussed, in determining whether “there is sufficient
evidence from which the jury could find that the only reasonable
inference is that the defendant intended to kill (not merely to
endanger or harm) everyone in the zone of fatal harm,” we
consider the circumstances surrounding the shooting, including
“the type of weapon used, the number of shots fired (where a
firearm is used), the distance between the defendant and the
alleged victims, and the proximity of the alleged victims to the
primary target.” (Canizales, supra, 7 Cal.5th at pp. 597, 607.)
The People argue the circumstances of the shooting here support
a reasonable inference the shooters intended to kill everyone in
the zone of fatal harm around Sheila. As the People point out,
Glass stood facing Sheila about 33 feet away, while Fat Man
stood to her left and Rayford to her right. A series of eight
bullets struck the house in an area surrounding Sheila and the
others on the grass, who had limited means of escape as they
funneled into the entrance of the house. One bullet struck
Darrel. The gunfire that traveled from east to west was powerful
enough to pierce multiple walls within the house. These facts
supported our decision in Rayford I.




                                33
       However, other circumstances support a reasonable
alternative inference more favorable to Rayford and Glass, that
the shooters acted not with the specific intent to kill everyone in
and in front of the house, but with conscious disregard of the risk
Sheila and her family and neighbors might be seriously injured
or killed. Each shooter shot at most four bullets at the house—
four from east to west (from where Fat Man was standing) and
four from south to north (from where Glass was standing). Glass
was standing in front of Sheila, but he shot “directly towards the
house,” not at her. He also fired at the front window where no
one was standing, but a cousin was looking out. Rayford only
shot into the air. Neither Sheila nor Donisha testified any
shooter targeted specific victims. The eight bullets that were
recovered were not fired at a specific location, instead striking
the house from the window to the right of the front door to the
wood to the left of the door. Although the weapons had sufficient
force to pierce the walls of the house, there was no evidence the
guns were rapid-firing semiautomatic or automatic weapons.
       These circumstances are markedly different from those in
People v. Cerda, supra, 45 Cal.App.5th at pages 16-17, in which
the Court of Appeal subsequent to Canizales upheld a kill zone
instruction. There, the shooter fired on two houses using an AK-
47 assault rifle to fire “up to four times the velocity of handgun
ammunition” into the houses, including firing at least 16 shots at
one house and multiple shots at second house. (Cerda, at p. 7;
see People v. Vang, supra, 87 Cal.App.4th 554, 558, 564 [evidence
shooters used “an AK series assault rifle” and shotgun to fire 50
shots at front of duplex with most of bullets directed at primary
target’s unit created reasonable inference defendants intended to
kill everyone inside]; cf. People v. Thompkins (2020)




                                34
48 Cal.App.5th 676, 688-689, 705-706 [trial court erred in giving
kill zone instruction where shooter fired 10 shots into crowd of
10-20 customers in restaurant, killing two and wounding five
people, but there was no intended target]; People v. Mariscal
(2020) 47 Cal.App.5th 129, 139 [trial court erred in giving kill
zone instruction where defendant killed intended target, then
shot at four of target’s friends, but error was harmless beyond a
reasonable doubt].)18
       Although egress from the fray here was more constricted
than the open street in Canizales, the house’s front yard and door
provided maneuvering space for those congregated to avoid fatal
injury, and for all but Darrel and Kimberly to avoid physical
injury of any kind. (Cf. Bland, supra, 28 Cal.4th at p. 331 [kill
zone instruction supported where “defendant and his cohort fired
a flurry of bullets at [primary target’s] fleeing car,” creating a kill
zone around the car’s other passengers].) While the
determination whether to instruct on the kill zone “does not turn
on the effectiveness or ineffectiveness of the defendant’s chosen
method of attack,” whether an inference can reasonably be drawn
“is at least informed by evidence” the potential primary targets—
Sheila, Donisha, and Terry (like Pride and Bolden in Canizales)
were not hit by any of the bullets. (Canizales, supra, 7 Cal.5th at
p. 611.) Although a bullet struck Darrel, trial testimony did not
reveal where Darrel was standing when he was struck. Like
Kimberly in the upstairs bedroom, the evidence is equivocal
whether Darrel came within a zone of fatal harm or was simply




18    The Supreme Court in Canizales cited the holding in People
v. Vang approvingly. (Canizales, supra, 7 Cal.5th at p. 610.)




                                  35
hit by a bullet fired into the house with conscious disregard of the
risk of seriously injuring or killing those inside or on the grass.
       We also consider the context of the incident. After Glass
argued with Perry, he and Rayford went to Sheila’s house looking
to fight him. When Sheila told Glass that Perry was not home,
De’Antwan accosted Terry, and the shooting began. Yet prior to
the incident, Glass was “like a part of [Sheila’s] family,” and
Glass and Rayford sometimes visited Sheila’s house together. In
light of these facts, coupled with the method of force employed
(four to five bullets fired by each shooter randomly at the front of
the house), there is not sufficient evidence from which the jury
could find the only reasonable inference is that the shooters
intended to kill everyone in a zone of fatal harm. (Canizales,
supra, 7 Cal.5th at pp. 597, 607.) Rather, a reasonable
alternative inference is that the shooters fired on the house to
provoke Perry, whom they believed was inside, or to punish
Sheila and her family for protecting Perry, with conscious
disregard of the risk Sheila and the others inside and in front of
the house would be seriously injured or killed. Glass’s statement
to Kimberly after the shooting, “That’s what you bitches get,” is
as consistent with a specific intent to kill as with an intent to
punish Sheila and her family for hiding Perry, with conscious
disregard of the risk of fatal harm or serious injury to Sheila and
her family and neighbors. Under these circumstances the trial
court erred in instructing the jury on the kill zone theory. (Id. at
p. 608.)

D.    The Error Was Prejudicial
      As discussed, the trial court instructed the jury on two
theories of liability—that the defendants intended to kill each




                                36
victim as a primary target, and they intended to kill each victim
as a person in the kill zone. The People contend even if the
evidence was not sufficient to support the trial court’s instruction
on the kill zone theory, any error was harmless because the kill
zone instruction was not misleading, and even if the theory did
not apply, the jury was also properly instructed on a correct legal
theory requiring intent to kill the primary target. We agree with
Rayford and Glass the trial court instructed the jury on a legally
inadequate theory of the kill zone, and we therefore consider
whether the error in instructing the jury was harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S.
18 (Chapman). It was not.
       The California Supreme Court in Canizales distinguished
between an instruction on an alternative theory that is “not
factually supported by the evidence adduced at trial,” and one
that is “‘“contrary to law,” or, phrased slightly differently, cases
involving a “legally inadequate theory” . . . .’” (Canizales, supra,
7 Cal.5th at p. 613, quoting People v. Guiton (1993) 4 Cal.4th
1116, 1128.) The Canizales court found the instruction given to
the jury on the kill zone was legally inadequate because it
provided “no adequate definition to enable the jury to determine
whether the theory was properly applicable.” (Canizales, at
p. 615.) The Supreme Court left for another day whether
instruction of the jury on a legally inadequate theory is subject to
harmless error review under Chapman, or whether “an even
more stringent test” applies. (Canizales, at p. 615.) The
Supreme Court in People v. Aledamat (2019) 8 Cal.5th 1, 13, has
now resolved that question, holding “alternative-theory error is
subject to the more general Chapman harmless error test. The
reviewing court must reverse the conviction unless, after




                                 37
examining the entire cause, including the evidence, and
considering all relevant circumstances, it determines the error
was harmless beyond a reasonable doubt.” In contrast, factually
erroneous theories do not require reversal unless the record
affirmatively indicates the verdict actually rests on the
inadequate ground. (Id. at p. 7; Guiton, at p. 1128.) As the
Supreme Court explained, “When the theory is legally
erroneous—i.e., of a kind the jury is not equipped to detect—a
higher standard must be met for the error to be found harmless.
‘These different tests reflect the view that jurors are “well
equipped” to sort factually valid from invalid theories, but ill
equipped to sort legally valid from invalid theories.’” (Aledamat,
at p. 7.)
       “In determining whether a legally inadequate theory was
conveyed to the jury here, we must ask whether there is a
‘“reasonable likelihood”’ that the jury understood the kill zone
theory in a legally impermissible manner. [Citations.] In doing
so, we consider the instructions provided to the jury and counsel’s
argument to the jury.” (Canizales, supra, 7 Cal.5th at p. 613.)
The Canizales court observed the instruction given to the jury did
not define a kill zone “[b]eyond its reference to a ‘particular zone
of harm,’” and the prosecutor “substantially aggravated the
potential for confusion” by defining the kill zone overbroadly “as
an area in which people ‘can get killed’ or are in a ‘zone of fire.’”
(Id. at pp. 613, 614.) The court concluded the “error was one of
federal constitutional magnitude.” (Id. at p. 615.)
       Here, as in Canizales, the trial court instructed the jury
that to convict Rayford and Glass it had to find the shooters took
“a direct but ineffectual act . . . towards killing another human
being” and had “a specific intent to kill unlawfully another




                                 38
human being.” The court instructed further that “[a] person who
primarily intends to kill one person, may also concurrently intend
to kill other persons within a particular zone of risk. This zone of
risk is termed the ‘kill zone.’” As in Canizales, the instruction
failed to define the term “kill zone,” other than its reference to “a
particular zone of risk.” (See Canizales, supra, 7 Cal.5th at
p. 613.) The remainder of the instruction did not remedy this
defect. It stated, “The intent is concurrent when the nature and
scope of the attack, while directed at a primary victim, are such
that it is reasonable to infer the perpetrator intended to ensure
harm to the primary victim by harming everyone in that victim’s
vicinity.” By defining the kill zone as a “zone of risk,” the
instruction erroneously allowed the jury to convict Rayford and
Glass if the evidence showed they intended to subject individuals
in the “zone of risk” to a risk of harm, regardless of whether they
intended to kill the individuals in order to kill the primary
target.19 (See People v. McCloud (2012) 211 Cal.App.4th 788,
802, fn. 7 [“By referring repeatedly to a ‘zone of risk,’ [CALJIC
No. 8.66.1] suggests to the jury that a defendant can create a kill
zone merely by subjecting individuals other than the primary
target to a risk of fatal injury. . . . [T]hat is not correct.”].)

19    The instruction also failed to require the shooter have a
primary target for the kill zone theory to apply. This court’s
statement in Rayford I, that “[s]imply because Bland involved a
single primary target does not necessarily mean the theory of
concurrent intent only applies when a primary target is
identified,” is an incorrect statement of law in light of Canizales.
(Rayford I, supra, B179017; see Canizales, supra, 7 Cal.5th at
p. 608 [“When the kill zone theory is used to support an inference
that the defendant concurrently intended to kill a nontargeted
victim, however, evidence of a primary target is required.”].)




                                 39
       The prosecutor’s closing argument compounded the error.
The prosecutor described the theory of concurrent intent as when
the defendant “mainly intend[s] to kill one [person], but at the
same time, [he] can be found guilty of intending to kill everyone
in what’s known as a kill zone, a zone of risk.” The prosecutor
continued, “The idea was whether Rayford and Glass intended to
ensure harm to their intended victim in a way that exposed
everyone in their vicinity to harm.” The prosecutor added that
Perry was not a “primary victim” because he was not in the
house, but instead the primary victims were Sheila, Darrel, and
Kimberly because, as to the latter two, “they were struck by
gunfire.” Further, the prosecutor argued the kill zone was not
limited to the front door area but encompassed “the majority of
the living space in this house.”
       By referring to a “zone of risk” and defendants’ intent to
“expose[] everyone in their vicinity to harm,” “[t]he prosecutor’s
definition of the kill zone . . . was significantly broader than a
proper understanding of the theory permits” and “essentially
equated attempted murder with implied malice murder,” which
cannot support an attempted murder conviction. (Canizales,
supra, at p. 614.) This was reinforced by the prosecutor’s
reference to Darrel and Kimberly as two of the three “primary
victims,” conflating a victim with a target. And finally, by
arguing the “zone of risk” included the majority of the house, the
prosecutor was suggesting the family in the house beyond the
reach of the gunfire could be included in the kill zone because
they were within the zone of risk. “Thus, the prosecutor’s
argument had the potential to mislead the jury to believe that the
mere presence of a purported victim in an area in which he or she
could be fatally shot is sufficient for attempted murder liability




                               40
under the kill zone theory. So misled, the jury might well have
found factual support for what was effectively an ‘implied malice’
theory of attempted murder without detecting the legal error.”
(Ibid.)
       Under these circumstances, we cannot conclude beyond a
reasonable doubt the jury would have convicted Rayford and
Glass of 11 counts of attempted premeditated murder absent the
erroneous instruction. As to Sheila (count 2), Donisha (count 4),
Terry (count 7), and Darrel (count 3), who were identified in trial
testimony as standing outside the house on the grass or near the
front door when the shooting began,20 the shooters fired bullets
toward and around them. It is possible the jury convicted as to
these counts based not on the kill zone theory but on direct
evidence of the shooters’ intent to kill, which would be legally
permissible. As we noted in Rayford I, “substantial evidence
supports a finding there were several potential primary targets,”
including Sheila, Terry, and Donisha. (Rayford I, supra,
B179017.) However, we cannot tell from the evidence which of
the group in front of the house were the primary targets. The
jury may have found the primary target was Terry, whom

20    In Rayford I, we stated “Sheila’s three daughters, her two
neighbors and some of her nieces and nephews followed her
outside the house” immediately before the confrontation.
(Rayford I, supra, B179017.) However, a closer review of the trial
testimony reveals Sheila and Donisha did not identify who other
than Terry and Darrel followed Sheila and Donisha outside. No
testimony at trial places Sheila’s two other daughters, Shadonna
and Shontel, or any of Sheila’s nieces or nephews outside the
house when the shooting began. Although Sheila referenced the
“kids” who were present, she did not identify who was present or
how many.




                                41
De’Antwan accosted and physically attacked. Or it may have
found Donisha or Sheila was the primary target for protecting
Perry. But the jury alternatively could have focused on the two
who were injured—Kimberly and Darrel—whom the prosecutor
argued were “primary victims.” Without knowing which primary
target the jury selected as the basis for its application of the kill
zone theory, we cannot determine as to which individuals the
jury found the shooters acted with the specific intent to kill their
primary target.
       As to the remaining named victims, those whose precise
whereabouts within or outside the house at the time of the
shooting are unknown, the likelihood the jury based its verdict on
a legally erroneous theory is even greater. There is no evidence
these victims were anywhere near Sheila, Donisha, Terry, or
Darrel when the shooting began. Although a bullet struck
Kimberly (count 1) in the second floor west bedroom, there is no
evidence to support a finding the shooters had the specific intent
to kill Kimberly. The same is true for those whose location inside
the house is unknown, including Jasmin (count 5), Ebony (count
8), Jerterry (count 9), Donte (count 10), and Jermaine (count
11).21 In light of the entire record, it is not clear beyond a
reasonable doubt the jury would have returned the same verdict


21    Donisha testified Glass fired into the front window where
one of her cousins “was looking out.” However, Donisha did not
identify this cousin by name, and he or she is not identified
elsewhere in the record. We therefore do not know whether this
cousin was a named victim, or another cousin was home at the
time of the shooting but not named in the information, such as
Kevante.




                                 42
absent the error. (Canizales, supra, 7 Cal.5th at p. 615.) We
therefore vacate Rayford’s and Glass’s convictions of the 11
counts of attempted premeditated murder.22




22     Although we asked the parties to address at oral argument
the options that would be available to the superior court if we
vacate Rayford’s and Glass’s convictions, the resolution of how
this case will proceed should be determined by the superior court
in the first instance. We do not address Rayford’s additional
contentions he is actually innocent and the trial court erred in
failing to instruct the jury that Rayford, as an aider and abettor,
may be guilty of a lesser offense than his principals. Rayford did
not raise these contentions in his May 29, 2015 petition. We
agree with the People these issues are beyond the scope of the
Supreme Court’s transfer order. (See Cal. Rules of Court, rule
8.200(b)(2) [following transfer from Supreme Court
“[s]upplemental briefs must be limited to matters arising after
the previous Court of Appeal decision in the cause, unless the
presiding justice permits briefing on other matters”]; Dahms v.
Downtown Pomona Property & Business Improvement Dist.
(2009) 174 Cal.App.4th 708, 711, fn. 1 [declining to consider on
remand from Supreme Court “any arguments raised in the
supplemental briefs that could have been raised in the parties’
original briefs”].) Likewise, we do not address Glass’s additional
contentions he received ineffective assistance of trial counsel, he
is actually innocent, and his sentence of 11 consecutive life
sentences for a nonhomicide offense he committed at age 17 is an
unconstitutional sentence of life without parole—the Supreme
Court’s denial of Glass’s March 9, 2017 petition for writ of habeas
corpus was without prejudice to filing the petition in this court
only for consideration in light of Canizales. (In re Glass, supra,
S240520.)




                                43
                         DISPOSITION

      Rayford’s and Glass’s petitions for writs of habeas corpus
are granted, and each defendant’s 11 convictions for attempted
willful, deliberate, and premeditated murder are vacated.



                                          FEUER, J.
We concur:



             PERLUSS, P. J.



             SEGAL, J.




                                44
