Filed 4/3/14 P. v. Ivy CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C071077

         v.                                                                     (Super. Ct. No. SF118684A)

DEVAUGHN LEE IVY,

                   Defendant and Appellant.

         Defendant DeVaughn Lee Ivy fired multiple rounds from a semi-automatic SKS
rifle at rival gang member Antoneyo Robinson, who was standing in front of a liquor
store in Stockton. Robinson’s girlfriend, Bretina Moore, was standing next to her car
across the street when defendant opened fire. Their infant son, Jayshawn, was seated in a
car seat in the back of the vehicle. Robinson ran for the car. Moore, now in the driver’s
seat, waited for Robinson to get inside and then drove away at a high rate of speed.
Defendant got into a car driven by another man and followed, firing at least 11 additional
rounds into the back of Moore’s car before abandoning the pursuit. A bullet fragment



                                                             1
struck Jayshawn in the back of the head and lodged beneath the skin. Fortunately, the
fragment had slowed considerably due to its impact with the car and did not cause a
fatal injury.
       Convicted by jury of three counts of premeditated attempted murder (Counts 1-3),
one count of shooting at an occupied vehicle (Count 4), three counts of assault with a
semi-automatic firearm (Counts 5-7), and one count of causing corporal injury to a child
(Count 8), with various firearm and great bodily injury enhancement allegations found to
be true, defendant was sentenced to serve an indeterminate term of 25 years to life, plus
three consecutive life terms, plus a consecutive determinate term of 13 years 4 months
in state prison.
       On appeal, defendant contends: (1) the evidence is insufficient to support his
convictions for the attempted murders of Moore and Jayshawn (Counts 2 and 3);
(2) defendant’s trial counsel rendered constitutionally deficient assistance by (a) failing to
object to certain statements made by the prosecutor during closing argument concerning
the concurrent intent (i.e., kill zone) theory of attempted murder, and (b) stating during
the defense closing argument the SKS rifle was “an attempted murder weapon” and a kill
zone was created within Moore’s car during the shooting; and (3) the trial court
prejudicially erred and violated his constitutional rights by telling the jury, in response to
a question concerning the premeditation allegation attached to Counts 2 and 3 (i.e., “can
you use that same kill zone scenario for premeditation?”), “yes, the jury can use the
theory and logic of the kill zone in determining whether or not it was willful, deliberate,
premeditated.” We affirm. As we explain, the evidence was more than sufficient to
support defendant’s attempted murder convictions in Counts 2 and 3. Defense counsel’s
performance during his and the prosecutor’s closing arguments did not fall below an




                                              2
objective standard of reasonableness. And the trial court’s response to the jury’s question
did not misstate the law or violate defendant’s constitutional rights.
                                          FACTS
       Defendant and Robinson were members of rival street gangs. Defendant was a
member of the Taliban Crips. Robinson was a member of the Sutter Street Crips. These
rival gangs fought over who could sell drugs in certain areas of Stockton. Robinson and
Michael McKinney, one of the leaders of the Sutter Street Crips, routinely sold drugs
near the Cal Park liquor store, at the intersection of California Street and Park Street. At
one time, defendant, Robinson, and McKinney were friends.
       On January 26, 2011, around 7:00 p.m., defendant left his house on the north side
of Stockton in a Honda Accord belonging to one of his roommates, Alicia Colwart. He
brought with him a semi-automatic SKS rifle he kept in his room. Defendant had
previously told another roommate, Michael Patrick, that he “had problems” with
McKinney and needed the rifle “for protection.”
       About an hour later, Robinson called Moore on her cell phone and told her to meet
him at Cal Park. Moore, who was at her mother’s house with Jayshawn about a mile
away, placed the child in a car seat in the back of her Chevy Caprice and drove to the
liquor store. She parked across Park Street. Robinson was in the store’s parking lot with
a group of people. As Moore described, “everybody was just out there talking.” One of
Moore’s friends, who was also in the parking lot, walked over to Moore’s car and agreed
to watch Jayshawn while Moore went into the store to buy a bottle of water. Robinson
walked over to Moore as she crossed the street. They entered the store together, but
Robinson returned to the parking lot while Moore spoke briefly with the store owner,
paid for the water, and then walked back to the Caprice.




                                              3
       When Moore reached the driver’s side door, defendant opened fire on the parking
lot with the SKS rifle. He was standing outside Colwart’s car on the corner of Park Street
and American Street, one block east of the liquor store. From this position, defendant
fired “five to seven” rounds. His intended target was Robinson, who ran to Moore’s car
after the shooting stopped and got in the front passenger seat. Moore, now in the driver’s
seat, drove away as Jayshawn cried in his car seat.
       Defendant got into the passenger side of the Accord, which was being driven by
another man, and followed in pursuit. They caught up with the Caprice several blocks
down Park Street. “Hanging out the passenger side window,” defendant fired at least 11
rounds into the back of Moore’s car. Bullets struck the trunk and rear window, shattering
the glass. One of the bullets fragmented upon impact with the car and struck Jayshawn in
the back of the head, lodging in the muscle beneath the skin. As Moore described the
chaotic scene inside the car: “First I heard like dinging, dinging, that is when I turned
around and seen the lights. [Robinson] told me to go and more bullets kept coming, my
back window shattered down. A bullet came through the vehicle, went -- one went
through my radio. As I had my foot all the way on the pedal, [Robinson] reached over
and grabbed the steering wheel. I hit a garbage can at the time that he reached over and
grabbed the steering wheel, a bullet came through the back and straight through the front
window. We kept going, and once we hit the garbage can, the vehicle behind us turned
off.” Moore continued down Park Street, got onto Interstate Highway 5, and drove
to their house.
       When they reached the house, Moore inspected Jayshawn and discovered he had
been hit by one of the bullets. She called 911. Robinson “yelled that they had shot his
baby in the head” and “walked out” of the house. Police and emergency medical
personnel arrived a short time later. Jayshawn was transported to San Joaquin General




                                             4
Hospital and then transferred to Children’s Hospital in Oakland. The chief of surgery
explained that, had the fragment not slowed considerably due to the bullet’s impact with
the car, it would have penetrated “through the spinal cord and through the brain which
would have been almost certainly a fatal injury.” The decision was made to clean and
dress the wound and allow the fragment to “work itself out on its own.”
       A few days later, defendant was again seen in the passenger seat of the same car
near the Cal Park liquor store. This time, McKinney was standing next to the store. As
the car drove south down California Street in front of the store, defendant pointed a gun
at McKinney, who ran behind a woman. The car then drove away without shots
being fired.
       Defendant was arrested on February 9, 2011. His house was searched the same
day. The SKS rifle was recovered from the living room. The rifle’s magazine contained
26 unfired TulAmmo 7.62 by 39 millimeter rounds. A single unfired round was in the
chamber. Another round was sitting on the coffee table. Three shell casings were found
elsewhere in the house. Shell casings of the same brand and caliber recovered from the
scene of the shooting were determined to have been fired by defendant’s rifle.
       In addition to the forensic evidence, the prosecution presented eyewitness
testimony from Delbert Rivers. About an hour before the shooting, Rivers robbed a gas
station four blocks from Cal Park. He then ran to his house a short distance away, got
onto his bicycle, and made his way to a house diagonally across the intersection from the
liquor store. Rivers described the shooting recounted above and identified defendant as
the shooter. Rivers was arrested for a string of robberies about a week after defendant
was arrested for the shooting. Several months later, Rivers and defendant were in the
same elevator at the San Joaquin County courthouse. Defendant said, “what’s going on”
to Rivers, who told defendant not to speak to him and added: “[Y]ou shot that baby and I




                                            5
don’t play that kind of stuff, I don’t, you know, go like that. You don’t shoot kids.”
Defendant responded that “he was trying to shoot [Robinson] and not the child.”
                                       DISCUSSION
                                              I
                                Sufficiency of the Evidence
       Defendant contends the evidence is insufficient to support his convictions for the
attempted murders of Moore and Jayshawn. Specifically, he argues: “At most, the
evidence supported a reasonable inference that Robinson . . . was targeted. But the
targeting of Robinson cannot be the basis for convicting [defendant] of the attempted
murders of Moore and Jayshawn. There is no evidence that [defendant] intended to kill
Moore and Jayshawn. Indeed, the evidence indicated that an unseen Jayshawn was
secreted in the back seat out of the public and [defendant’s] view.” We are not
persuaded.
       “ ‘To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citations.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v.
Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) The standard of
review is the same in cases in which the prosecution relies on circumstantial evidence.
(People v. Snow (2003) 30 Cal.4th 43, 66.) “ ‘Although it is the duty of the jury to acquit
a defendant if it finds that circumstantial evidence is susceptible of two interpretations,
one of which suggests guilt and the other innocence [citations], it is the jury, not the
appellate court which must be convinced of the defendant’s guilt beyond a reasonable
doubt.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Accordingly, we must




                                              6
affirm the judgment if the circumstances reasonably justify the jury’s finding of guilt
regardless of whether we believe the circumstances might also reasonably be reconciled
with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
       The mental state required for attempted murder differs from that required for
murder. Murder requires malice, express or implied. Express malice, i.e., intent to kill,
requires a showing the defendant either desired the death of the victim, or knew to a
substantial degree of certainty death would occur. (People v. Smith (2005) 37 Cal.4th
733, 739.) Implied malice simply requires a showing the defendant consciously
disregarded human life. (People v. Lasko (2000) 23 Cal.4th 101, 107.) Attempted
murder requires express malice; a conscious disregard for life will not suffice to support a
conviction for attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327-328
(Bland).)
       Another difference between murder and attempted murder involves the doctrine of
transferred intent. “Someone who in truth does not intend to kill a person is not guilty of
that person’s attempted murder even if the crime would have been murder--due to
transferred intent--if the person were killed. To be guilty of attempted murder, the
defendant must intend to kill the alleged victim, not someone else. The defendant’s
mental state must be examined as to each alleged attempted murder victim. Someone
who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the
attempted murder of the intended victim, but not of others.” (Bland, supra, 28 Cal.4th at
p. 328; People v. Stone (2009) 46 Cal.4th 131, 141.)
       However, where the defendant intends to kill a specific target and employs a
means of attack designed to kill everyone in the vicinity of the target in order to ensure
the death of the target, the defendant creates a “kill zone” around the target, and the jury
may reasonably infer the defendant possesses the concurrent intent to kill everyone




                                              7
within the kill zone. (Bland, supra, 28 Cal.4th at pp. 326-327, 329-330.) “ ‘The intent is
concurrent . . . when the nature and scope of the attack, while directed at a primary
victim, are such that we can conclude the perpetrator intended to ensure harm to the
primary victim by harming everyone in that victim’s vicinity. For example, an assailant
who places a bomb on a commercial airplane intending to harm a primary target on board
ensures by this method of attack that all passengers will be killed. Similarly, consider a
defendant who intends to kill A and, in order to ensure A’s death, drives by a group
consisting of A, B, and C, and attacks the group with automatic weapon fire or an
explosive device devastating enough to kill everyone in the group. The defendant has
intentionally created a “kill zone” to ensure the death of his [or her] 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.’ ” (Id. at pp. 330-331, quoting Ford
v. State (1993) 625 A.2d 984, 1000-1001.)
       This case is indistinguishable from Bland, supra, 28 Cal.4th 313, in which the
defendant and another man, both gang members, fired several rounds into a car driven by
a rival gang member. The car also contained two passengers. Convicted of the first
degree murder of the driver and the premeditated attempted murders of the passengers,
the Court of Appeal reversed the attempted murder convictions. (Id. at p. 318.) Our
Supreme Court reversed. After adopting the “kill zone” theory of concurrent intent, set
forth above, the court explained: “This case permits―virtually compels―a similar
inference. Even if the jury found that defendant primarily wanted to kill [the driver]
rather than [the] passengers, it could reasonably also have found a concurrent intent to
kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing
car and thereby created a kill zone. Such a finding fully supports attempted murder
convictions as to the passengers.” (Id. at pp. 330-331.) So too here. While the jury




                                             8
likely concluded defendant’s primary target was Robinson, it could reasonably also have
found defendant employed a means of attack designed to kill everyone in the car in order
to ensure Robinson’s death and therefore possessed the concurrent intent to kill everyone
within the car. Nor does it matter whether defendant could see that Jayshawn was in the
car seat. (See People v. Adams (2008) 169 Cal.App.4th 1009, 1022-1023; see also
People v. Vang (2001) 87 Cal.App.4th 554, 563-564 [where the jury drew a reasonable
inference the “defendants harbored a specific intent to kill every living being within the
residences they shot up,” it did not matter that “they could not see all of their victims”].)
       We conclude the evidence is sufficient to support defendant’s convictions for the
attempted murders of Moore and Jayshawn.
                                              II
                             Ineffective Assistance of Counsel
       Defendant also claims his trial counsel rendered constitutionally deficient
assistance by (a) failing to object to certain statements made by the prosecutor during
closing argument concerning the kill zone theory, and (b) conceding certain points during
the defense closing argument. We disagree.
       A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him [or her] to ‘the reasonably competent assistance of an attorney
acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid., quoting
United States v. DeCoster (D.C.Cir. 1973) 487 F.2d 1197, 1202.) “ ‘In order to
demonstrate ineffective assistance of counsel, a defendant must first show counsel’s
performance was “deficient” because his [or her] “representation fell below an objective




                                              9
standard of reasonableness . . . under prevailing professional norms.” [Citations.]
Second, he [or she] must also show prejudice flowing from counsel’s performance or lack
thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833; accord, Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
       The burden of proving a claim of ineffective assistance of counsel is squarely
upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) In determining
whether counsel’s performance was deficient, we must exercise “deferential scrutiny”
(People v. Ledesma, supra, 43 Cal.3d at p. 216) and refrain from engaging in “the
perilous process of second-guessing” counsel’s rational tactical decisions. (People v.
Miller (1972) 7 Cal.3d 562, 573.) Where, as here, the record does not contain an
explanation for the challenged aspect of representation, the judgment must be affirmed on
appeal unless counsel was asked for an explanation and failed to provide one or there
simply could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 425,
overruled on another ground as stated in People v. Ortiz (2012) 208 Cal.App.4th 1354,
1372.) Thus, we may reverse “ ‘only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for his [or her] act or omission.’ [Citation.]”
(People v. Zapien (1993) 4 Cal.4th 929, 980.)
       We turn now to defendant’s specific arguments, neither of which has merit.
                                             A.
                               The Prosecutor’s Argument
       During closing argument, the prosecutor made the following statements regarding
the kill zone theory:




                                             10
       “Now, we talked about a direct step indicating a definite unambiguous intent to
kill, and he did that when he fired that assault rifle, and it’s a direct movement towards
the commission of a crime. Now we know his target was [Robinson], but attempted
murder also applies when the defendant creates something called a kill zone, and that’s
what he did here. The law says a person may intend to kill a specific victim and at the
same time intend to kill everyone in a particular harm or kill zone. The jury instruction
on kill zone says this: [‘]A person, the defendant, may intend to kill a specific victim,
[Robinson], and at the same time intend to kill everyone in a particular zone of harm or
kill zone. In order to convict the defendant of the attempted murders of [Moore] and/or
Jayshawn, the People must prove that the defendant not only intended to kill [Robinson],
but either intended to kill Jayshawn and [Moore], or everyone within the kill zone,[’] and
his intent was to kill everybody in that car. He’s not specifically targeting [Robinson],
he’s shooting [Robinson’s] car up. His rounds went straight in through the left driver’s
side, through the right driver’s side. We know it went through the trunk, through the
backseat fragmenting through the car seat, that’s a kill zone.
       “We know the back window was shot out, the bullet holes went through the very
front window. He’s not being discriminatory about who he is trying to shoot, he’s trying
to shoot everybody in that car, and that’s creating a kill zone through the car seat, through
the back window, and we know it fragments and ends up there in Jayshawn’s head.”
       Defendant argues his trial counsel provided ineffective assistance by failing to
object to these statements because they “misrepresent[ed] and incorrectly inform[ed] the
jury on the law” of concurrent intent. According to defendant, “[t]rying to shoot
everybody in the car did not create a kill zone whereby everybody was concurrently
targeted to be killed.” He is mistaken. As we have already explained, from defendant’s
act of firing at least 11 rounds into the back of Moore’s car, the jury could reasonably




                                             11
have concluded he possessed the concurrent intent to kill everyone within the car. The
prosecutor’s argument simply stated as much. Nor is this case like People v. Anzalone
(2006) 141 Cal.App.4th 380, in which the Court of Appeal held the prosecutor misstated
the law by arguing the defendant there could be convicted of four counts of attempted
murder based on only two gunshots fired into a crowd simply because all four alleged
victims were in “the zone of danger.” (Id. at pp. 391-393.) Here, the prosecutor
accurately described the kill zone theory and argued it applied to the facts of this case.
Defense counsel appropriately did not object.
                                              B.
                               Defense Counsel’s Argument
       Defendant also argues his trial counsel provided ineffective assistance by
conceding during the defense closing argument that the SKS rifle was “an attempted
murder weapon” and a kill zone was created within Moore’s car. With respect to the kill
zone theory, defense counsel stated: “The Prosecutor said that the shooter attempted to
kill everyone. He says that the person had the intention to kill everyone . . . within this
kill zone, that is, if some people are standing on the sidewalk and a car goes by and does
a drive-by and they only want to shoot one person but they actually hit two of them and
they don’t die, because the kill zone is kind of an attempted murder situation as opposed
to a murder thing, so it would not apply to that. A couple of people are wounded, you
don’t have to actually attempt to kill everyone, but he thinks that the person attempted to
kill everyone. I think that’s probably the right -- I think that’s probably the right analysis
based on the facts of just the physical, the number of shots and the close range and heavy
weapon and all those kinds of things like that that there was an intention.”
       Defendant argues these concessions “for all practical purposes denied [him] his
right to have guilt or innocence decided by the jury.” Not so. In light of the




                                              12
overwhelming evidence the SKS rifle was used in the shooting and a kill zone was
created within Moore’s car, defense counsel made a reasonable tactical decision to
concede these points and argue someone other than defendant was the shooter.
Specifically, in over 70 pages of reporter’s transcript, defense counsel urged the jury to
believe the testimony of defendant’s sister, Brittany Ivy, i.e., that defendant was on a
pizza run in a different car with Patrick and another man when the shooting occurred and
Colwart had taken her car earlier in the day and did not return until later that night.
Defense counsel also challenged the credibility of Rivers and Patrick, argued the
prosecution had not established any motive on defendant’s part, and posited whoever
committed the crime, likely a member or associate of the Taliban Crips, brought the SKS
rifle over to defendant’s house sometime after the shooting. Given the state of the
evidence, defense counsel reasonably could have concluded that challenging either the
SKS rifle was used in the crime or Moore’s car was turned into a kill zone by the firing of
at least 11 rounds into the back of the car would lessen his credibility in the eyes of the
jury and the strength of his defense that defendant was not the shooter. (See People v.
Hart (1999) 20 Cal.4th 546, 631 [“trial counsel reasonably could have concluded that
challenging the evidence more vigorously in his argument risked alienating the jury”].)
       Defense counsel’s performance during his and the prosecutor’s closing arguments
did not fall below an objective standard of reasonableness.
                                             III
                                    Instructional Error
       Finally, we reject defendant’s assertion the trial court prejudicially erred and
violated his constitutional rights by telling the jury it could “use the theory and logic of
the kill zone in determining whether or not [the attempted murders charged in Counts 2
and 3 were] willful, deliberate, premeditated.”




                                              13
       After returning guilty verdicts on all counts, the jury foreperson stated the jury was
unable to reach a unanimous decision as to the premeditation allegation attached to
Counts 2 and 3. The trial court asked: “Does anyone have any questions I might be able
to answer that would be of assistance as to that issue? Anyone have any questions you
want to ask about that? [¶] [Foreperson], do you feel that if you had any additional time
that that would be of assistance in being able to reach a verdict? In other words, is there a
reasonable likelihood the jury would be able to reach a verdict as to that issue?” The
foreperson answered: “It’s a possibility, Your Honor.” The trial court then sent the jury
home for the day and ordered the jurors to resume their deliberations at 9:00 a.m. the
following day.
       Shortly after deliberations resumed, the jury sent the trial court two notes. The
first note stated: “Please explain or interpret the definition of the prem[e]ditation, expand
with further explanation.” The second note stated: “Please elaborate and expand on ‘kill
zone’ as it applies to willfulness, deliberation and prem[e]ditated.” In response to these
notes, the trial court brought the jury into the courtroom and re-read CALCRIM Nos. 600
and 601.
       After re-reading CALCRIM No. 6001 to the jury, the trial court stated: “Then the
key instruction really is [CALCRIM No.] 601 because the defendant has been found


1      As re-read to the jury, CALCRIM No. 600 stated: “To prove that the defendant is
guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at
least one direct, but ineffective step toward killing another person; and [¶] 2. The
defendant intended to kill that person. [¶] A direct step requires more than merely
planning or preparing to commit murder or obtaining or arranging for something needed
to commit murder. A direct step is one that goes beyond planning or preparation and
shows that a person is putting his plan into action. [¶] A direct step indicates a definite
and unambiguous intent to kill. It is a direct movement toward the commission of the
crime after preparations are made. [¶] It is an immediate step that puts the plan in
motion, so that the plan would not -- so that the plan would have been completed if some


                                             14
guilty of attempted murder by the jury as to [Moore] and [Jayshawn]. So the remaining
issue is whether or not it was willful, deliberate, premeditated. So [CALCRIM No.] 601
covers that.” As re-read to the jury, CALCRIM No. 601 stated: “If you find the
defendant guilty of attempted murder, you must then decide whether the People have
proved the additional allegation that the attempted murder was done willfully and with
deliberation and premeditation. [¶] The defendant acted willfully if he intended to kill
when he acted. [¶] The defendant deliberated if he carefully weighed the considerations
for and against his choice and, knowing the consequences, decided to kill. [¶] The
defendant decided to kill -- the defendant premeditated if he decided to kill before acting.
[¶] The length of time the person spends considering whether to kill does not alone
determine whether the attempted killing is deliberate and premeditated. The amount of
time required for deliberation and premeditation may vary from person to person and
according to the circumstances. A decision to kill made rashly, impulsively, or without
careful consideration of the choice and its consequences is not deliberate and
premeditated. On the other hand, a cold, calculated decision to kill can be reached
quickly. The test is the extent of the reflection, not the length of time. [¶] The People
have the burden of proving this allegation beyond a reasonable doubt. If the People have
not met this burden, you must find this allegation has not been proved.”




circumstances outside the plan had not interrupted the attempt. [¶] A person may intend
to kill a specific victim or victims and, at the same time, intend to kill everyone in a
particular zone of harm or kill zone. In order to convict the defendant of the attempted
murder of [Jayshawn] or [Moore], the People must prove that the defendant not only
intended to kill [Robinson], but also either intended to kill [Jayshawn] or [Moore], or
intended to kill everyone within the kill zone. [¶] . . . [¶] If you have a reasonable
doubt whether the defendant intended to kill [Moore] or [Jayshawn] or intended to kill
[Robinson] by killing everyone in the kill zone, then you must find the defendant not
guilty of the attempted murder of [Moore] or [Jayshawn].”


                                             15
       The trial court then asked the foreperson: “So does that answer the question[?]”
The foreperson answered: “Somewhat.” In response to the trial court’s solicitation of
any further questions, Juror No. 10 asked: “Based on the finding has been that attempted
murder and if you use the logic or the scenario of kill zone in that situation [¶] . . . [¶]
but then you are struggling with using that same -- or can you use that same kill zone
scenario for premeditation? That’s the question.” Following a discussion at bench, the
trial court answered: “To answer the question, yes, the jury can use the theory and logic
of the kill zone in determining whether or not it was willful, deliberate, premeditated.”
       Defendant argues the trial court abused its discretion by answering this question.
We disagree. “When a jury asks a question after retiring for deliberation, [Penal Code]
‘[s]ection 1138 imposes upon the court a duty to provide the jury with information the
jury desires on points of law.’ [Citation.] But ‘[t]his does not mean the court must
always elaborate on the standard instructions. Where the original instructions are
themselves full and complete, the court has discretion under [Penal Code] section 1138 to
determine what additional explanations are sufficient to satisfy the jury’s request for
information.’ [Citation.] We review for an abuse of discretion any error under [Penal
Code] section 1138. [Citation.]” (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.)
Here, at the time the question was asked, the jury had already found defendant guilty of
the attempted murders of Robinson, Moore, and Jayshawn, and further that the attempted
murder of Robinson was done willfully and with deliberation and premeditation. Given
the facts of this case, and the content of Juror No. 10’s question, it is reasonable to
conclude the jury found defendant guilty of the attempted murders of Moore and
Jayshawn based on the kill zone theory of concurrent intent, but struggled with whether
or not defendant could be found guilty of the willful, deliberate, and premeditated
attempted murders of Moore and Jayshawn based on the fact he willfully and with




                                              16
deliberation and premeditation attempted to kill Robinson by employing a means of
attack designed to kill everyone in the car, including Moore and Jayshawn. The answer
is “yes.” We conclude this is what the jury would have understood the trial court to mean
by “us[ing] the theory and logic of the kill zone in determining whether or not [these
attempted murders were] willful, deliberate, premeditated.” The trial court did not abuse
its discretion in so instructing the jury.
                                        DISPOSITION
       The judgment is affirmed.



                                                       HOCH        , J.



We concur:



      RAYE         , P. J.



      ROBIE        , J.




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