Filed 7/16/15 P. v. Barnes CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060922

v.                                                                       (Super.Ct.No. FSB1104286)

BRANDON TARAY BARNES,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. William Jefferson

Powell IV, Judge. Affirmed in part; reversed in part with directions.

         William J. Capriola, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.




                                                             1
Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and

Respondent.

       Defendant and appellant Brandon Taray Barnes appeals his conviction on one

count of first degree murder and seven counts of premeditated attempted murder, arising

out of a single incident in which defendant fired 15 or 16 rounds at a home at which

multiple members of a family were gathered. Defendant contends that the standard

instruction on the “kill zone” theory of attempted murder does not give the jury sufficient

information to allow it to make an informed decision as to whether that theory applies

because it fails to inform the jury that the defendant must use a means of killing or

attempting to kill a targeted individual that will result in the death of everyone in that

person’s immediate vicinity. We agree that the instruction is deficient, but we find that

defendant was not prejudiced by the error. We also reject defendant’s contentions that

his sentence constitutes cruel or unusual punishment and violates his right to due process,

and we find no abuse of discretion in the trial court’s denial of defendant’s Pitchess1

motion. We will remand the cause for correction of the sentence.




       1   Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).




                                              2
                                 PROCEDURAL HISTORY

       A second amended information charged defendant with the murder of Nylah

Torres2 (count 1; Pen. Code,3 § 187, subd. (a)), and with the attempted willful, deliberate

and premeditated murders of Justine Aguilar, Ladonna Howie, Jerry Howie,

Albert Hull, Jr., Robert Mergil, Lorenzo Mancha, and Justin Wade Hull (counts 2-8;

§§ 664, 187, subd. (a)). The information alleged as to each count that defendant

personally used a firearm, within the meaning of section 12022.53, subdivisions (b), (c),

and (d).

       A jury convicted defendant on all counts, finding that the killing of Nylah Torres

was first degree murder and that the attempted murders were willful, deliberate and

premeditated, and found all of the firearm allegations true. The court sentenced

defendant to “274 years followed by a possibility of life.”4

       Defendant filed a timely notice of appeal.




       2The record includes two different spellings of the victim’s last name: Torres
and Franco-Torrez. We will use the spelling as listed in the second amended information.

       3   All further statutory references are to the Penal Code unless otherwise indicated.

       4   See discussion in section 4, post.



                                                3
                                         FACTS

       On September 12, 2011, a number of members of a family, including all of the

named victims and an undisclosed number of other relatives, attended a social gathering

at the home of Sophia Cardona in San Bernardino. Early in the evening, Ladonna and

Jerry Howie went to a store to purchase some ingredients for dinner and some beer. Jerry

rode his bicycle and Ladonna walked or rode on Jerry’s bicycle. On the way back to the

house, they saw defendant in the middle of the street, beating up a young woman. The

woman was yelling at him to stop and saying, “I didn’t stab her.” Jerry yelled at

defendant to stop. A verbal altercation ensued between Jerry Howie and defendant and

two or three other men who were present. Defendant ran away. Ladonna asked the

young woman if she wanted to come with them, but she declined. Jerry and Ladonna

returned to the house.

       A short while later, defendant walked up to the house where the Howies and their

family had gathered. Ladonna and Jerry Howie, Albert and Justin Hull, Lorenzo Mancha

and Robert Mergil were all on the porch; the Howies’ four-year-old daughter Justine

Aguilar was in the front yard. Defendant began shooting at the house, firing

approximately 16 rounds from a nine-millimeter semiautomatic handgun. Ladonna was

struck in the ear by a bullet, which passed through her head and out the other ear. Justine

Aguilar was struck in the head, but survived. Three-year-old Nylah Torres was standing

in the living room, near the front window. She was struck in the chest and died shortly

afterward.

                                             4
       Defendant ultimately admitted shooting at the house, but claimed he aimed high

and intended to shoot over the house, simply as a warning to Jerry Howie not to mess

with him. He explained that he was beating up the young woman because she was one of

several young women who had stabbed his sister.

                                   LEGAL ANALYSIS

                                             1.

          DEFENDANT’S PITCHESS MOTION WAS PROPERLY DENIED

       Defendant filed a Pitchess motion (Pen. Code, §§ 832.7, 832.8; Evid. Code,

§§ 1043-1045), seeking discovery of any documentation concerning complaints about the

improper use of force contained in the personnel file of the detective who interrogated

him. Defendant contended that the detective physically assaulted him and coerced him

into confessing. The trial court found good cause to require the custodian of records of

the San Bernardino County Sheriff’s Department to produce any relevant records for the

court’s in camera review. Following its review, the trial court stated in open court that

there were “no discoverable records to turn over” and denied the motion. Defendant now

asks that we review the in camera proceeding and any documents produced by the

custodian of records to determine whether the trial court abused its discretion in denying

the motion.




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       We review the denial of a Pitchess motion for abuse of discretion. (People v.

Mooc (2001) 26 Cal.4th 1216, 1228 (Mooc).) In Mooc, the court held that in order to

preserve the defendant’s ability to obtain appellate review of the denial of a Pitchess

motion, the trial court should make a record of the documents it reviewed in camera,

either by photocopying the documents or preparing a written list of the documents it

reviewed and/or stating on the record the documents it reviewed. (Id. at p. 1229.)

Defendant asks that we review the documents the trial court reviewed and determine

whether the trial court abused its discretion in failing to turn over any or all of those

documents to the defense.

       We have reviewed the reporter’s transcript of the in camera proceeding. In that

proceeding, the custodian of records was placed under oath and then informed the court

that there were no documents relevant to defendant’s request. The trial court properly

relied on that assertion. (Mooc, supra, 26 Cal.4th at pp. 1229-1230 & fn. 4.)

Accordingly, there was no abuse of discretion.

                                              2.

   DEFENDANT WAS NOT PREJUDICED BY ANY DEFECT IN INSTRUCTION

                            ON THE “KILL ZONE” THEORY

       The prosecutor’s theory of the case was that defendant intended to kill Jerry

Howie and that to do so, he sprayed 16 bullets at the house, creating a “kill zone” with




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the intention of killing everyone present.5 The jury was instructed on attempted murder

using the language of CALCRIM No. 600. As given in this case, the pertinent portion of

that instruction states: “The defendant is charged in Counts 2 through 8 with attempted

murder. To prove that the defendant is guilty of attempted murder, the People must

prove that: [¶] One, the defendant took at least one direct, but ineffective step toward

killing another person; [¶] and, two, the defendant intended to kill that

person. [¶] . . . [¶] 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 Justine Aguilar, Ladonna Howie, Albert

Hull, Robert Mergil, Lorenzo Mancha, and Justin Hull, the People must prove that the

defendant not only intended to kill Jerry Howie, but also either intended to kill those

other people or intended to kill everyone within the kill zone. [¶] If you have a

reasonable doubt whether the defendant intended to kill those other people or intended to

kill Jerry Howie by killing everyone in the kill zone, then you must find the defendant not

guilty of the attempted murders of those other people.” In his supplemental brief,

defendant contends that this instruction does not give the jury sufficient information

because “[t]he jury is not told how to make an informed judgment on the essential issue:

does the evidence show that the method of attack was such that it supports the inference


       5The kill zone theory was adopted by the California Supreme Court in People v.
Bland (2002) 28 Cal.4th 313 (Bland).) We will discuss the theory below.



                                              7
that the defendant intended to kill everyone within the scope of his or her attack as a

means of killing the ‘targeted’ victim?”6

        The California Supreme Court has held that no specific instruction on the kill zone

theory is required. (Bland, supra, 28 Cal.4th at p. 331, fn. 6.) However, if a trial court

does give an instruction, whether required or not, it must provide a complete and accurate

statement of the law, sufficient to inform the jury of the general principles of law

necessary for the jury’s understanding of the case. (People v. Ramirez (2015) 233

Cal.App.4th 940, 949; People v. Givan (2015) 233 Cal.App.4th 335, 343.) If a trial

court’s failure to properly instruct the jury affects the defendant’s substantial rights, the

defendant’s failure to object does not bar an appeal. (Ibid.) We independently determine

whether instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193,

218.)

        Attempted murder requires the specific intent to kill, but the defendant need not

intend to kill a specific person. Under the kill zone theory, if the defendant intends to kill

a specific person and in order to do so employs a means that will cause the death of every

person in the immediate vicinity of the target, the defendant may be liable for the

attempted murder of every such person. Examples include placing a bomb on an airplane

or spraying a group of people with gunfire sufficient to cause the death of every person

        6 Although defendant refers to cases holding that it is error to give an instruction
that is not supported by the evidence, he does not argue that evidence in this case was
insufficient to support the instruction.



                                               8
present. However, there must be evidence that the defendant specifically intended to kill

every person in the zone. It is not sufficient that the defendant intended to kill one

specific person and acted with conscious disregard for the likelihood of killing others.

The jury can infer the defendant’s intent to kill everyone around the target victim from

the method the defendant used.7 (Bland, supra, 28 Cal.4th at pp. 329-331.)

       CALCRIM No. 600 does not, as defendant points out, explain that in order to

support the inference that the defendant intended to kill everyone within the “zone of

harm,” the defendant’s method of attempting to kill the target victim must be such that

everyone surrounding that victim would be expected to die as well. We agree that the

instruction should state that requirement explicitly. However, the omission was not

prejudicial, in that there is no reasonable probability that the jury would have returned a

more favorable verdict if it had been so instructed. (People v. Whisenhunt (2008) 44

Cal.4th 174, 214.) Firing into a group of people using enough bullets to kill everyone in

the group supports the inference that the defendant intended to kill every person present.

(Bland, supra, 28 Cal.4th at pp. 330-331.) Here, Jerry Howie appears to have been the

primary target. Howie was on the porch. The six other attempted murder victims were

outside in front of the house, either in the yard or on the porch, near Howie. Using a

semiautomatic pistol, defendant fired 15 or 16 shots. This evidence is sufficient to

       7 The scope of the kill zone theory as it has been interpreted by the intermediate
Courts of Appeal is currently on review in People v. Canizales, S221958 (rev. granted
Nov. 19, 2014) (Fourth Dist., Div. Two).



                                              9
support the inference that defendant intended to kill all seven individuals. The jury was

instructed that it must find that defendant specifically intended to kill each victim, and as

to each count of attempted murder it returned a true finding that defendant specifically

intended to kill the victim. It is not reasonably probable that if the full instruction had

been given, the jury would have concluded that the method defendant employed did not

support the inference that he intended to kill everyone surrounding Howie.

                                              3.

                    DEFENDANT’S SENTENCE IS CONSTITUTIONAL

       Defendant contends that his sentence of 274 years to life violates the ban on cruel

and/or unusual punishment embodied in both the state and federal constitutions and

violates the due process clauses of both constitutions because it is the functional

equivalent of life without the possibility of parole, a sentence the Legislature intended to

reserve for certain aggravated forms of murder. As we discuss in section 4, post,

properly stated, defendant’s sentence is not 274 years to life. Nevertheless, consisting as

it does of nine consecutive terms of 25 years to life and seven consecutive terms of life

with the possibility of parole, it is, as defendant contends, the functional equivalent of life

in prison without the possibility of parole. The question is whether that is

unconstitutional.




                                              10
        Defendant’s cruel and unusual punishment argument relies on dissenting and

concurring opinions by the late California Supreme Court Justice Stanley Mosk, who

argued that a sentence that cannot possibly be completed within the defendant’s lifetime

serves no rational legislative purpose and constitutes cruel and unusual punishment.

(People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.); People v. Deloza

(1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.).) Neither the California

Supreme Court nor the United States Supreme Court has adopted Justice Mosk’s view,

however, and defendant provides no analysis or argument beyond the bare citations to

Justice Mosk’s dissent and concurrence which might persuade us that his sentence does

violate the prohibition on cruel and/or unusual punishment. We may reject such a

perfunctory argument without discussion. (People v. Weaver (2001) 26 Cal.4th 876, 986-

987.)

        Defendant also contends that the sentence violates the ban on cruel and unusual

punishment and due process because the de facto sentence of life without the possibility

of parole is the same punishment as is imposed for murder with special circumstances but

without a finding of any such circumstance. He asserts, with no analysis, that by enacting

section 190.2, which establishes the special circumstances that can result in sentences of

death or life in prison without the possibility of parole, the Legislature expressed its

intention that only under such circumstances could a sentence of life without the

possibility of parole be applied. That contention is belied by the fact that the Legislature

has enacted other sentencing schemes, such as the three strikes law, which provide for

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multiple lengthy consecutive terms which also may result in a de facto sentence of life

without the possibility of parole. (§ 667, subds. (c)(6), (7), (e); People v. Deloza, supra,

18 Cal.4th at pp. 589-600 [affirming a sentence of 11 years plus four consecutive terms

of 25 years to life for four counts of armed robbery against four victims in a single

incident].)

                                             4.

                             CORRECTION OF SENTENCE

       The court sentenced defendant to 25 years to life for the murder of Nylah Torres,

with a consecutive term of 25 years to life for gun use on that count. It then purported to

sentence defendant to seven years to life, consecutively, on each of the attempted murder

counts, with a consecutive term of 25 years to life for gun use as to each of those counts.

The court concluded that the total sentence was “274 years followed by a possibility of

life.” This is erroneous as a matter of law. The statutory term for willful, deliberate and

premeditated attempted murder is life with the possibility of parole. (§ 664.) A person

sentenced to that term is not eligible for parole until he or she has served seven years.

(§ 3046.) However, although that parole ineligibility period is deemed to be a minimum

term for purposes of second-strike offender sentencing under the three strikes law

(People v. Jefferson (1999) 21 Cal.4th 86, 92-97; §§ 667, subd. (e)(1), 1170.12, subd.

(c)(1)), it is not otherwise a minimum term. (People v. Felix (2000) 22 Cal.4th 651, 654,

657-659.)




                                             12
       Accordingly, the correct sentence for each count of attempted murder is life with

the possibility of parole, not seven years to life. We will remand the cause with

directions to issue a corrected abstract of judgment and corrected sentencing minutes.

                                      DISPOSITION

       The judgment is reversed to the extent that it imposes a term of seven years to life

on counts 2 through 8. The judgment is otherwise affirmed.

       The superior court is directed to issue a corrected abstract of judgment and

corrected sentencing minutes reflecting imposition of a sentence of life with the

possibility of parole on counts 2 through 8. The superior court is directed to provide a

copy of the corrected abstract of judgment and the corrected sentencing minutes to the

parties and to the Department of Corrections and Rehabilitation within 30 days after this

opinion becomes final.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                                Acting P. J.
We concur:



KING
                          J.



MILLER
                          J.

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