Filed 4/14/16
                                                                       *
                      CERTIFIED FOR PARTIAL PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION ONE


THE PEOPLE,                                        B261458

        Plaintiff and Respondent,                  (Los Angeles County
                                                   Super. Ct. No. VA116734)
        v.

ISMAEL CARDONA,

        Defendant and Appellant.



        APPEAL from an order of the Superior Court of Los Angeles County. Robert J.
Higa, Judge. Affirmed in part, reversed in part.
        Chris R. Redburn, 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, Blythe J. Leszkay and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
                          ________________________________




        * Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of part III of the discussion.
       Appellant Ismael Cardona challenges his convictions for murder and attempted
murder arising from an incident at a party during which he shot two people, killing one
and wounding the other. Cardona contends that the trial court erred by giving the jury a
“kill zone” instruction with respect to the attempted murder charge. He also contends
that the trial court erred with respect to the murder charge by instructing the jury
regarding the limitations to the right of self-defense available to a defendant who was
the initial aggressor in the confrontation with the victim. We agree with Cardona’s
contention regarding the attempted murder charge, but disagree regarding the murder
charge. Accordingly, we affirm the judgment in part and reverse in part.

                        FACTS AND PROCEEDINGS BELOW
       Cardona attended a party in the backyard of a house in Whittier on the night of
April 3, 2009. Three friends accompanied him to the party, all members of a street gang
known as MFT.
       Paul Jauregui also attended the party accompanied by his friends. He brought
with him a tank containing nitrous oxide, or “noz,” from which he was selling doses
to partygoers. Cardona and one of his friends approached Jauregui and his friends. The
noz tank fell over. Jauregui and a friend tried to grab it, but Cardona’s friend wrestled it
away and ran out of the party. Cardona pulled a gun on Jauregui and said, “ ‘Give me
your money,’ ” and “ ‘It’s our tank now.’ ” Jauregui pushed the gun away, grabbed
Cardona by the shoulder, and stabbed him several times with a switchblade. Cardona
pushed Jauregui off of him and shot at Jauregui five or six times. Jauregui fell to the
ground, and Cardona fired the last of the shots while standing over Jauregui or fleeing the
scene. Jauregui suffered three gunshot wounds to his buttocks or the back of his thigh,
and one to the back of his arm or shoulder. He later died of his injuries.
       Bryan Carrillo, who was standing nearby, turned to run away when he heard the
first of the shots. When he was no more than 15 to 20 feet away from Cardona, one of
the later shots struck Carrillo in the back, seriously injuring him.




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       An information charged Cardona with one count of first degree murder and
one count of attempted murder, in violation of Penal Code sections 187 and 664,
respectively, along with special circumstance, gang, and firearm enhancements.1
After a trial in July 2014, a jury found Cardona guilty of both counts and found all the
enhancements true, with the exception of the firearm enhancement with respect to the
attempted murder count. The court sentenced Cardona to life imprisonment without the
possibility of parole for the murder, plus 25 years to life for the firearm enhancement, and
15 years to life for the attempted murder, plus 25 years to life for the firearm
enhancement.
                                       DISCUSSION
       Cardona raises several issues on appeal. He contends that the trial court erred
when it gave a kill zone instruction with respect to the attempted murder charge.2
Cardona further contends that the prosecution presented insufficient evidence to support
his conviction for attempted murder. He also contends that the trial court erred by giving
jury instructions regarding self-defense by an aggressor. Finally, he argues that the court
erred in imposing a parole revocation fine.3 We reverse Cardona’s attempted murder
conviction and parole revocation fine, but otherwise affirm.




       1   Unless otherwise specified, all statutory references are to the Penal Code.
       2  Because we reverse Cardona’s conviction for attempted murder in count 2, we
need not address his additional contentions pertaining to this count, including whether it
was proper to impose a sentence of 15 years to life for this count, and whether the trial
court erred by imposing a sentence enhancement with respect to this count that the jury
did not find true.
       3 Cardona contends that the trial court erred by imposing a $300 parole revocation
fine. We agree. Because Cardona was sentenced to life imprisonment with no possibility
of parole, it was improper to impose a parole revocation fine. (People v. Oganesyan
(1999) 70 Cal.App.4th 1178, 1181-1183.)

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I.     Kill Zone Instruction
       Cardona argues that the trial court erred when it instructed the jury pursuant to a
kill zone theory of liability for attempted murder.4 We agree.
       A.     Forfeiture
       The Attorney General argues that Cardona forfeited this claim because his
attorney failed to object to the kill zone instruction in the trial court. In general, the
failure to object to an instruction bars a defendant from challenging the instruction on
appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326.) When an instructional error affects
a defendant’s substantial rights, however, a court may address it in spite of the failure to
preserve the issue in the trial court. (People v. Lewis (2009) 46 Cal.4th 1255, 1294,
fn. 28; §§ 1259, 1469.) “In this regard, ‘[t]he cases equate “substantial rights” with
reversible error’ under the test stated in People v. Watson (1956) 46 Cal.2d 818.”
(People v. Felix (2008) 160 Cal.App.4th 849, 857.) Because we find that instructional
error in this case was reversible error under the People v. Watson test (see section I.C,
post, at p. 8), we conclude that Cardona did not forfeit the argument. (People v. Franco
(2009) 180 Cal.App.4th 713, 719.)
       B.     Instructional Error
       “ ‘The trial court has the duty to instruct on general principles of law relevant
to the issues raised by the evidence [citations] and has the correlative duty “to refrain
from instructing on principles of law which not only are irrelevant to the issues raised
by the evidence but also have the effect of confusing the jury or relieving it from


       4   The court instructed the jury as follows, pursuant to the then-current version of
CALJIC No. 8.66.1: “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 kill the primary victim by killing 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.” When the
court read this instruction to the jury, its wording varied slightly, but not materially.

                                               4
making findings on relevant issues.” [Citation.] “It is an elementary principle of law
that before a jury can be instructed that it may draw a particular inference, evidence
must appear in the record which, if believed by the jury, will support the suggested
inference [citation].” [Citation.]’ [Citation.]” (People v. Alexander (2010) 49 Cal.4th
846, 920-921.) Accordingly, if the record contains no evidence that would support
application of the kill zone theory, then the trial court erred by instructing the jury on
that theory.
       There is a crucial distinction between the mental states required for a defendant
to be convicted of murder and attempted murder: “Murder does not require the intent to
kill. Implied malice—a conscious disregard for life—suffices.” (People v. Bland (2002)
28 Cal.4th 313, 327 (Bland).) In contrast, “ ‘[a]ttempted murder requires the specific
intent to kill and the commission of a direct but ineffectual act toward accomplishing the
intended killing.’ ” (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith), quoting People
v. Lee (2003) 31 Cal.4th 613, 623.)
       This distinction has created complications in cases where a defendant attacks
multiple victims. Under the doctrine of transferred intent, when a defendant fires a gun
in an attempt to kill one victim, but the bullet strikes and kills a bystander, the defendant
is guilty of murder even if he did not know the bystander was present. (Bland, supra,
28 Cal.4th at pp. 320-321.) But the doctrine of transferred intent does not apply when
an unintended victim survives the attack. (Id. at pp. 326-331.) The court in Bland
reasoned that applying the doctrine of transferred intent would make liability for
attempted murder too vague: “The world contains many people a murderous assailant
does not intend to kill. Obviously, intent to kill one person cannot transfer to the entire
world. But how can a jury rationally decide which of many persons the defendant
did not intend to kill were attempted murder victims on a transferred intent theory?”
(Id. at p. 329.)
       The Supreme Court in Bland, supra, 28 Cal.4th 313, introduced the kill zone
theory to address another variation of this theme—situations in which a defendant
attempts to kill an entire group of people in order to kill a specific victim. Because the

                                              5
defendant acts with the specific intent to kill everyone in the victim’s vicinity, he is guilty
of attempted murder of each member of the group. (Id. at pp. 329-330.) The theory of
guilt here is not transferred intent, but rather concurrent intent, meaning that “ ‘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.’ ” (Id. at p. 329.)
       The Bland court provided examples of situations in which a kill zone theory is
appropriate. The paradigmatic example is that of “ ‘an assailant who places a bomb on a
commercial airplane intending to harm a primary target on board [who] ensures by
this method of attack that all passengers will be killed.’ ” (Bland, supra, 28 Cal.4th
at pp. 329-330.) The Bland court also cited the example of People v. Vang (2001)
87 Cal.App.4th 554, 563–565, in which the defendants fired multiple rounds with
high-powered, wall-piercing weapons at two occupied houses. Although the defendants
primarily meant to kill one victim, they were convicted of 11 counts of attempted murder,
one for each inhabitant of the house. (Id. at p. 563.) According to the Bland court, the
court in Vang analyzed the case under the same reasoning as the kill zone theory, even if
it did not use that name. (Bland, supra, 28 Cal.4th at p. 330.) In Bland itself, the court
held that the kill zone theory was appropriate, noting that the defendant was liable for two
counts of attempted murder for “fir[ing] a flurry of bullets at [a] fleeing car and thereby
creat[ing] a kill zone.” (Id. at p. 331.)
       By contrast, when there is no evidence of an intent to kill an entire group of
people, courts have held that the kill zone instruction is inappropriate. Thus, in People v.
Stone (2009) 46 Cal.4th 131 (Stone), the defendant fired a single shot at a group of
10 people, not striking any of them. (Id. at pp. 134-135.) Our Supreme Court held that
“[t]he kill zone theory simply does not fit the charge or facts of this case” because there
was no evidence that the defendant intended to take the lives of the entire group in order
to kill one victim. (Id. at p. 138.) In another case with similar facts, the Supreme Court
held that “[t]he facts of this case do not establish that defendant created a ‘kill zone’
by firing a single shot from a moving car at a distance of 60 feet at [a] group of eight

                                              6
individuals.” (People v. Perez (2010) 50 Cal.4th 222, 232 (Perez).) And in People v.
McCloud (2012) 211 Cal.App.4th 788 (McCloud), we held that a kill zone theory did not
support the defendants’ conviction of 46 counts of attempted murder when they fired
10 shots into a crowded party. (Id. at pp. 799-800.)
       The Attorney General argues that McCloud, Perez, and Stone are distinguishable
because, in each case, the defendant did not fire enough shots to kill all of the victims for
whom he was convicted of attempted murder. Here, however, Cardona was charged
with only one count of murder and one count of attempted murder, and he fired at least
five shots, including one that struck and seriously wounded Carrillo. But the defining test
of the kill zone theory is whether “the evidence supports a reasonable inference that, as
a means of killing the primary target, the defendant specifically intended to kill every
single person in the area in which the primary target was located.” (McCloud, supra,
211 Cal.App.4th at p. 803.) A correlation between the number of shots fired and the
number of victims in the alleged kill zone is merely one relevant factor. The Attorney
General also points out that, unlike the defendants in McCloud and Stone, Cardona had a
primary target, namely Jauregui. In McCloud, supra, 211 Cal.App.4th at p. 801, we held
that a kill zone instruction was inappropriate in part because there was no evidence that
the attacker had a primary target. But the existence of a primary target, although
relevant, is not sufficient for the application of the kill zone theory. Again, without
evidence that the defendant intended to kill everyone in an area in order to kill the
primary target, the kill zone theory is inapplicable. (Id. at p. 802.)
       The facts of this case are a poor fit for the kill zone theory. The evidence showed
that Cardona first fired his weapon after Jauregui stabbed him. As we explain below,
because Cardona provoked the attack by drawing his gun and attempting to rob Jauregui,
the shooting was not justifiable self-defense. Nevertheless, all the available evidence
indicated that Cardona’s primary motivation in shooting Jauregui was to defend himself.
The shooting took place in a crowded party, but no witness testified that Cardona sprayed
everyone near Jauregui with gunfire. Without evidence of an attempt by Cardona to kill



                                              7
everyone in a particular area in order to kill Jauregui, it was error for the trial court to
give the kill zone instruction.
       C.      Prejudice
       A state law instructional error does not require reversal of a conviction unless it is
reasonably probable that the defendant would have obtained a better result in the absence
of the error. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214, citing People v. Watson,
supra, 46 Cal.2d at pp. 836–837.) We conclude that there was a reasonable probability
that Cardona would have obtained a better result if not for the kill zone instruction, and
we accordingly hold that the conviction for attempted murder must be reversed.
       The only theory of attempted murder liability the prosecution presented to the jury
was the kill zone theory. In closing arguments, the prosecution suggested that the kill
zone theory allowed for a conviction of attempted murder in the absence of specific
intent. The prosecutor argued: “When Mr. Cardona is up and he is looking at
Mr. Jauregui on the ground, lying on the ground, with his back towards him and he
continues to shoot him, what is his purpose? He is intending to kill Mr. Jauregui at that
point in time. Right. And when you have that, ladies and gentlemen, and you have this
instance where we are at a party with numerous people, . . . and you heard that there
[were] people around them, these people who are near that shooting site are in a ‘risk
zone’ this ‘kill zone’ and so when Mr. Carrillo gets hit, he becomes this transferred
intent that the kill zone instruction talks about, . . . this concurrent intent to kill others.”
The prosecutor thus effectively invited the jury to conclude that Cardona was guilty of
attempted murder of Carrillo because he shot at Jauregui while other people were nearby,
even if he did not intend to kill anyone other than Jauregui. Even assuming the kill zone
theory was applicable under our facts, the prosecutor seriously misstated the application
of the theory by suggesting that Cardona could be guilty of attempted murder through




                                                8
transferred intent. As explained above, transferred intent does not apply to the kill zone
theory, nor is it a valid theory for attempted murder.5
       Given the erroneous instruction and the prosecutor’s misstatement of its
application, it is not surprising that the jury struggled with its deliberations on attempted
murder. Indeed, the jury submitted the following question to the court: “We need
further clarification of the kill zone. Does there have to be intent to kill/murder in order
to be found guilty of attempted murder? In other words, if someone is accident[al]ly
shot in the kill zone, is this considered attempted murder?” The court’s response
was not written or transcribed in the record, but it apparently did not clear up the
jury’s confusion, because later the same day, the jury submitted another question: “Is
disregarding/endangering human life and shooting, the same as intending to kill the
primary victim by shooting everyone in the vicinity[?]” (Capitalization omitted.) This
time, the jury withdrew the question before the court responded. These questions show
that the jury had doubts about whether the kill zone instruction allowed it to find
Cardona guilty of attempted murder even if he shot Carrillo only “accident[al]ly” or
while “disregarding [or] endangering human life.” Without the improper instruction,
it is reasonably probable that the jury would have found Cardona not guilty of attempted
murder of Carrillo. For this reason, the error was prejudicial, and reversal of Cardona’s
attempted murder conviction is required.




       5  In addition, the prosecutor may have created further confusion by describing the
kill zone as a “risk zone.” The term “zone of risk,” which also appears in the pattern jury
instruction on the kill zone (CALJIC No. 8.66.1), suggests that a defendant may be
guilty of attempted murder under a kill zone theory simply for placing others at a risk
of being killed. This may encourage juries to convict defendants erroneously upon a
finding of implied, rather than express, malice. None of the Supreme Court cases that
have addressed the kill zone theory use the term “zone of risk” as a substitute for “kill
zone.” (See Bland, supra, 28 Cal.4th 313; Smith, supra, 37 Cal.4th 733; Stone, supra,
46 Cal.4th 131; and Perez, supra, 50 Cal.4th 222.)

                                              9
II.    Sufficiency of the Evidence of Attempted Murder
       Cardona argues that the prosecution failed to present sufficient evidence to support
his conviction for willful, deliberate, and premeditated attempted murder. Although we
have already concluded that his conviction must be reversed, we must address this issue
because if the prosecution did not produce substantial evidence of attempted murder, it
would be barred from retrying Cardona for this offense.
        In reviewing the sufficiency of the evidence, “[w]e view the evidence in the light
most favorable to the prosecution, and presume in support of the judgment the existence
of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin
(2004) 33 Cal.4th 1015, 1028.) Under this standard, we conclude that the prosecution did
introduce sufficient evidence to convict Cardona of willful, deliberate, and premeditated
attempted murder.
       The evidence introduced at trial regarding the circumstances of the shooting was
contradictory. Some witnesses testified that Cardona fired two or three shots at Jauregui,
then stood over him and fired two or three more shots after Jauregui had fallen face down
on the ground. Another witness testified that Cardona fired the last few shots while he
was fleeing from the party. Carrillo testified that Cardona was within 20 feet of him, and
possibly even closer, at the time of the shooting. From all this testimony, a jury could
reasonably conclude that Cardona aimed each of his shots at Jauregui, and that he hit
Carrillo only because he missed his primary target. Alternatively, a jury could conclude
that Cardona aimed at least one of his shots at Carrillo to thwart anyone from preventing
his escape. As the Attorney General correctly points out, “ ‘The act of firing toward a
victim at a close, but not point blank, range “in a manner that could have inflicted a
mortal wound had the bullet been on target is sufficient to support an inference of intent
to kill.” ’ ” (Smith, supra, 37 Cal.4th at p. 741.) Furthermore, attempted murder requires
that the defendant act with the specific intent to kill, but it does not require that the
defendant have a specific victim in mind. (Stone, supra, 46 Cal.4th 131, 140-141.)
Finally, “ ‘[t]he process of premeditation and deliberation does not require any extended
period of time.’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Thus, the

                                               10
prosecution introduced sufficient evidence that could support a conviction for willful,
deliberate, and premeditated attempted murder.
III.   Self-Defense Instructions
       Cardona contends that the trial court erred by instructing the jury on self-defense
by an aggressor and contrived self-defense. He argues that there was insufficient
evidence to support these instructions. We disagree.
       A killing is justified and not punishable if it was committed in perfect self-defense.
(People v. Lopez (2011) 199 Cal.App.4th 1297, 1305; § 197.) “For killing to be in
self-defense, the defendant must actually and reasonably believe in the need to defend.
[Citation.] . . . To constitute ‘perfect self-defense,’ i.e., to exonerate the person
completely, the belief must also be objectively reasonable.” (People v. Humphrey (1996)
13 Cal.4th 1073, 1082.) A person who has been attacked may stand his ground and need
not attempt to retreat. (People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346-1347.)
When the killer acted as an initial aggressor or contrived the need for self-defense,
however, he may not claim self-defense as a justification unless he can show that he tried
in good faith to refuse to continue fighting, and caused his opponent to be aware both that
he wanted to stop fighting and that he actually had stopped fighting. (People v. Button
(1895) 106 Cal. 628, 632.)
       Cardona argues that he was not the initial aggressor because it was his friend who
initiated the confrontation with Jauregui by stealing the noz tank, and that Cardona drew
his gun only after Jauregui stabbed him. But at least one witness testified that Cardona
first approached Jauregui with his gun drawn, and only then did Cardona’s friend move
in and take the noz tank. Furthermore, several witnesses said they saw Cardona get into
fights and commit at least one robbery prior to the shooting. This was sufficient evidence
to put into question whether Cardona had initiated the attack on Jauregui and created the
need to use self-defense. Accordingly, the jury instruction on this issue was proper.
(See People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 [self-defense instruction
required where there was sufficient evidence for a jury to find defendant had requisite
mental state].)

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                                     DISPOSITION
      The judgment of the trial court is reversed with respect to count 2, attempted
murder. The parole revocation fine is reversed. In all other respects, the judgment is
affirmed.
      CERTIFIED FOR PARTIAL PUBLICATION.




                                                       ROTHSCHILD, P. J.
We concur:



                    CHANEY, J.



                    LUI, J.




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