Filed 7/21/26 P. v. Pantoja CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B338001
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA075242)
v.
OSCAR PANTOJA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Hayden A. Zacky, Judge. Affirmed in part,
reversed in part and remanded.
Patricia A. Scott, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Oscar Pantoja (defendant) appeals
from his conviction of two counts of attempted murder where the
People advanced the kill zone theory to support his guilt.
Defendant contends use of the kill zone instruction was factually
unsupported and should not have been given and the court’s
instruction identified a primary target not supported by the
evidence; he adds, the prosecutor’s argument compounded these
errors such that there is a reasonable likelihood the jury relied on a
legally impermissible theory to convict. We agree and reverse
counts 3 and 4.
Defendant also alleges the court abused its discretion in
imposing the middle term on counts 5 and 7. We disagree.
FACTUAL AND PROCEDURAL BACKGROUND
I. Statement of the case
In 2024, the People filed a second amended information
against defendant alleging one count of murder (Pen. Code,1 § 187,
subd. (a); count 1); three counts of attempted willful, deliberate, and
premeditated murder (§§ 187, subd. (a), 664; counts 2–4); being a
felon in possession of a firearm (§ 29800, subd. (a)(1); count 5); and
shooting at an inhabited dwelling while personally using a firearm
(§§ 246, 12022.5, subd. (a); count 7). As to counts 1 through 4, the
People also alleged defendant personally used and discharged a
firearm as defined in section 12022.53, subdivisions (b), (c), and (d).
The People further alleged defendant suffered a prior strike
conviction within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)–(j), 1170.12).
The jury convicted defendant as charged and found the
murder in count 1 was in the first degree. In a bifurcated court
1 All further undesignated statutory references are to the Penal
Code.
2
trial on the prior strike allegation, the court found the strike true.
The court sentenced defendant to state prison for an aggregate term
of 186 years to life, which included imposition of the middle term on
counts 5 and 7.
Defendant timely filed a notice of appeal.
II. Statement of facts
A. Background
Thomas Pineda joined the North Hollywood Boyz street gang
in approximately 2005. Louis Villegas joined the gang after Pineda,
and both were active members. Defendant, known as “Shadow,”
and Andrew Salas also joined the gang after Pineda.
By early 2010, Pineda had grown tired of the gang lifestyle.
After being released from probation, he decided to disassociate from
the gang, found work, and stopped attending gang gatherings.
Villegas similarly withdrew from the gang, found employment,
purchased a car, and began dating Jocelyn Solano. Pineda and
Villegas remained in contact and spent more time together after
leaving the gang.
Defendant was particularly upset by Pineda’s decision to
leave the gang. He called Pineda’s house repeatedly, asking where
Pineda was and why he was hiding, and sometimes came to the
house looking for him. The conflict between defendant and Pineda
escalated into mutual disrespect of each other’s families. Defendant
told Pineda that Pineda’s family knew what they had coming if they
ran into defendant and the gang. Pineda responded by
disrespecting defendant’s daughter. Pineda understood that he
should “watch [his] back” and, if he and defendant ever saw each
other, violence would ensue.
The gang members often gathered at the home of Rachel
Cordero, who had a daughter, Melania. On one occasion around
2009, the gang was at a hotel. Melania later told Pineda she had
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awakened with the feeling that Villegas had done something
inappropriate to her. As a result, Melania told Pineda he should
not associate with Villegas and “she wanted him dead.” Pineda
thought it was a “moment of anger” because they had all been
friends and he did not want to take sides. Eventually, Salas
became romantically involved with Melania’s mother, Cordero. In
September 2012, Melania remained upset about Villegas and
continued to express it to Pineda and others in the gang.
B. The events leading to the shooting
On the evening of September 24, 2012, Catarina Strickler
invited Villegas and Solano to her house. The group decided to go
to the D Lounge bar to celebrate Villegas’s new job and car.
Villegas picked up Pineda to join them. Villegas drove the group in
his Lexus sedan, with Solano in the front passenger seat, Pineda in
the rear seat behind Solano, and Strickler in the rear seat on the
driver’s side.
Surveillance video from a liquor store captured defendant and
Salas inside the store around 9:00 that evening. Defendant was
wearing a black T-shirt, and Salas wore a white T-shirt and
baseball cap. After leaving the liquor store, the two men drove to
the D Lounge, arriving only minutes after Pineda and his group
left. Defendant and Salas left the D Lounge minutes later.
Before the group left the D Lounge, Villegas received a phone
call. After the call, Villegas told Pineda that defendant wanted to
meet up to resolve the differences between defendant and Pineda.
The group left the bar and went through a nearby drive-through
where Villegas received a second call. Strickler saw the phone’s
caller ID display the name “Shadow.” Solano took the phone from
Villegas and spoke aggressively to the caller in Spanish. Pineda
understood the purpose of the calls was to arrange a meetup
between defendant and himself to settle their differences. Pineda
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believed only defendant would be present and the two would engage
in a “fair one-on-one fight.”
C. The shooting
Villegas drove to the intersection of Balboa Boulevard and
Parthenia Street and parked the Lexus on Parthenia Street facing
west, at the corner of Nottingham Place. The passenger side of the
Lexus was adjacent to the sidewalk. A Honda was parked nearby
on Nottingham Place, facing south toward Parthenia.
Pineda told Strickler to stay in the car and he and Villegas
got out and walked toward the rear of the Lexus and in the
direction of Nottingham Place and the Honda. Strickler
repositioned herself in the back seat so she could see out both the
front and back windows by turning her body toward the passenger
side of the car with her legs across the backseat and her back
against the rear driver’s side door. She saw defendant, whom she
recognized as “Shadow,” exit from the driver’s side of the Honda
and a second man, whom she saw wearing a white T-shirt and
baseball cap, exit from the passenger side. She thought there was
going to be a fist fight among the four men.
Defendant and the second man walked toward Pineda and
Villegas. As the two pairs got closer to each other, defendant and
the second man drew firearms from their waistbands. Strickler saw
both men point their guns at Villegas and Pineda. Pineda saw
defendant’s gun pointed at him and saw the flash from the gun
firing. Villegas and Pineda put their hands up and tried to run
back toward the Lexus.
Pineda turned and ran toward the rear driver’s side of the
Lexus and heard more shots fired. He was struck in the back by a
bullet near the rear driver’s side door and lost consciousness as he
fell to the ground. He did not know who shot him in the back but
told police defendant was the man who was “going for” him. As
5
Pineda ran toward the driver’s side of the Lexus, Villegas ran
toward the front of the Lexus along the passenger side. When
Pineda regained consciousness, he was at the rear driver’s side of
the Lexus with his head toward the front end of the car, and he saw
Villegas face down on the ground in front of him.
Strickler heard two or three gunshots but could not identify
who fired them. The gunshots stopped. The man in the white
T-shirt approached the front passenger door of the Lexus, which
was open, and shot Solano. He stepped to the side to face the rear
passenger door and shot Strickler. Strickler was struck in the
abdomen and grazed in the knee. Solano was shot once through her
forearm and once through her chest. The man in the white T-shirt
ran back to the Honda, and the car drove away. Strickler did not
see defendant approach or come near the Lexus at any point during
the shooting.
Eyewitness Henry Kim was stopped at a red light at Balboa
Boulevard and Parthenia Street when he heard gunshots, saw two
muzzle flashes, and observed a man in a white T-shirt, dark shorts,
and a baseball cap running away from the scene.
Strickler exited the Lexus from the rear passenger door. She
found Pineda’s phone, which already had 911 dialed; Strickler
completed the call to 911. Strickler saw both Pineda and Villegas
on the ground on the driver’s side of the car.
D. Ballistics evidence
Los Angeles Police Department Detective Stefanie Diaz
investigated the case and testified regarding the ballistics evidence.
The physical evidence established that a total of 10 bullets were
fired, producing nine to 13 impacts including through-and-through
wounds. Six 9-millimeter cartridge casings were recovered from the
scene, all discharged from the same semiautomatic firearm. Four
casings were recovered from the sidewalk adjacent to the passenger
6
side of the Lexus, consistent with a shooter firing into the Lexus
from that location. No cartridge casings were found along the path
where a second shooter, presumably defendant, was firing at Pineda
as he fled south and southwest toward the driver’s side of the
Lexus.2
Three bullets struck property across the street from the
Lexus: one struck a minivan parked on Parthenia Street, consistent
with a trajectory traveling north to south; one penetrated a sliding
glass door of an apartment across Parthenia Street, also consistent
with traveling north to south; and one struck a sedan parked nearly
directly across the street from the Lexus, consistent with traveling
southwest. Detective Diaz testified the impact evidence from those
three locations was consistent with the second shooter firing at
Pineda as he fled toward the driver’s side of the Lexus.
The full accounting of the 10 bullets fired was: Solano struck
twice while inside the Lexus; Strickler struck in the abdomen while
sitting in the Lexus and the bullet remains in her body; a bullet
through the rear passenger window; Pineda struck once in the back;
Villegas struck twice; and three bullets striking the minivan,
apartment, and sedan across the street from the Lexus.
William Moore, an independent forensic scientist specializing
in firearms and a former Los Angeles Police Department firearms
analyst, testified for the defense. Moore opined only one firearm
was used and it was a semiautomatic nine-millimeter.
On rebuttal, Detective Diaz testified that bullet fragments
recovered near the vehicles and apartment across the street from
the Lexus were consistent with small caliber bullets that could
include .38 special, .357 Magnum, or nine-millimeter calibers and
2 This was consistent with the second shooter using a revolver,
which does not automatically eject casings.
7
were most likely fired from a revolver because no casings were
recovered. She further testified the bullet recovered from Pineda
was consistent with revolver calibers and that it is not possible to
determine whether a bullet was fired from a particular firearm
without having the firearm available for testing.
E. Defense witness Salas
Salas, who was tried and convicted separately for his role in
these crimes, testified at defendant’s trial to take accountability and
clear his conscience. At the time of the investigation and his trial,
Salas blamed defendant for the shooting because he knew
defendant had fled to Mexico and “thought [he (Salas)] could get
away with this.”
Earlier on the night of the shooting, Salas went to defendant’s
house. Defendant told Salas he was going to meet up with Pineda
because of their ongoing family disputes. Defendant appeared
angry and said he wanted to hurt Pineda, who had threatened to
harm defendant’s daughter. Salas accompanied defendant for
support.
During the drive, Salas overheard defendant’s phone calls and
heard Solano’s voice on one of them. When Salas learned Villegas
would be present with Pineda, Salas also became angry as he
recalled Melania’s allegations against Villegas. Salas
independently decided he would shoot Pineda, Villegas, and Solano,
whom he planned to kill because she would be a witness. Salas did
not inform defendant of his plan to kill the three. Salas was
carrying a loaded nine-millimeter semiautomatic firearm in his
front pants pocket. As far as Salas knew, defendant was not
carrying a gun and planned only to fight Pineda.
At the scene, after defendant and Salas exited the Honda,
Salas separated from defendant and moved along the sidewalk
toward the passenger side of the Lexus, intending to shoot Pineda
8
and Villegas. He went to the front passenger door of the Lexus and
shot Solano twice through the open window. He then saw Strickler
in the rear passenger seat and, though he did not know her, decided
to shoot her to eliminate her as a witness. He fired once through
the closed rear passenger window. During this time, Salas did not
hear any other gunshots, yelling, or screaming, and did not know
what was happening around him.
Salas then turned to his left toward Pineda, who was
standing near the trunk of the Lexus, and fired two or three times
as Pineda tried to run away. When he saw Villegas near the rear of
the Lexus on the driver’s side, Salas shot him twice, emptying his
gun. Salas told defendant they needed to leave, and they drove
away.
DISCUSSION
I. Kill zone instruction
A. Relevant authority
1. Attempted murder
“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.’” (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).)
As our Supreme Court explained in People v. Bland (2002) 28
Cal.4th 313, 328 (Bland): “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.”
2. Aiding and abetting attempted murder
To be guilty of attempted murder under an aiding and
abetting theory, the defendant “‘must share the specific intent of
the [direct] perpetrator,’ that is to say, the person must ‘know[] the
full extent of the [direct] perpetrator’s criminal purpose and [must]
9
give[] aid or encouragement with the intent or purpose of
facilitating the [direct] perpetrator’s commission of the crime.’”
(People v. Lee (2003) 31 Cal.4th 613, 624, superseded by statute on
other grounds as stated in People v. Rodriguez (2022) 75
Cal.App.5th 816, 823–824.) In short, to be guilty of attempted
murder as an aider and abettor, the defendant must intend to kill.
(Lee, supra, at p. 624; People v. McCoy (2001) 25 Cal.4th 1111,
1118.)
3. Kill zone doctrine
The Supreme Court has “expressly embraced the concept of a
concurrent intent to kill as a permissible theory for establishing the
specific intent requirement of attempted murder.” (Canizales,
supra, 7 Cal.5th at p. 602.) This concurrent intent theory is
referred to as the “‘kill zone.’” (Id. at p. 603.)
Under the kill zone theory, “a defendant may be convicted of
the attempted murder of an individual who was not the defendant’s
primary target.” (Canizales, supra, 7 Cal.5th at p. 596.) “The kill
zone theory permits a jury to infer a defendant’s intent to kill an
alleged attempted murder victim from circumstantial evidence (the
circumstances of the defendant’s attack on a primary target).” (Id.
at p. 597; see People v. Mumin (2023) 15 Cal.5th 176, 193 (Mumin).)
The kill zone theory “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.” (Canizales, supra, 7 Cal.5th
at p. 607.) Relevant factors in determining whether defendant
10
intended to create a kill zone are (1) number of shots fired, (2)
nature of the zoned area, (3) distance between primary target and
others, (4) distance between defendant and others, (5) type of
weapon used, and (6) whether anyone was hit. (Ibid.)
Our inquiry on appeal is “whether substantial evidence [was]
presented to support a reasonable inference by the jury ‘that
defendant[ ] intended to create a zone of fatal harm around a
primary target.’” (Mumin, supra, 15 Cal.5th at p. 203.)
Justification for instructing on the kill zone theory “requires
substantial evidence that: 1. the defendant intended to kill a
primary target; 2. he concurrently intended to achieve that goal by
killing all others in the fatal zone he creates; and 3. the alleged
attempted murder victim was in that zone.” (Ibid.) These
requirements must be strictly adhered to in order to “protect
against an improper attempted murder conviction based only on a
conscious disregard for life” (ibid.) because “the kill zone theory
does not apply where ‘the defendant merely subjected persons near
the primary target to lethal risk’” (Canizales, supra, 7 Cal.5th at
p. 607).
Because “use or attempted use of force that merely
endangered everyone in the area is insufficient to support a kill
zone instruction,” “trial courts must exercise caution when
determining whether to permit the jury to rely upon the kill zone
theory. Indeed, we anticipate there will be relatively few cases in
which the theory will be applicable and an instruction appropriate.”
(Canizales, supra, 7 Cal.5th at p. 608, italics added.)
B. Relevant facts
1. Jury instructions
The jury was instructed using CALCRIM Nos. 400 and 401,
regarding general principles of aiding and abetting and aiding and
abetting intended crimes, respectively. The jury was also
11
instructed with CALCRIM No. 600 regarding attempted murder
and the kill zone doctrine. When instructing about the kill zone,
the court stated: “A person may intend to kill a primary target and
also secondary targets within a zone of fatal harm or ‘kill zone.’”
The jury was told “[i]n order to convict the defendant of the
attempted murder of Thomas Pineda, Jocelyn Solano, and Catarina
Strickler, the People must prove that the defendant not only
intended to kill Louis Villegas but also either intended to kill
Thomas Pineda, Jocelyn Solano, and Catarina Strickler, or intended
to kill everyone within the kill zone. [¶] In determining whether
the defendant intended to kill Thomas Pineda, Jocelyn Solano, and
Catarina Strickler, the People must prove that (1) the only
reasonable conclusion from the defendant’s use of lethal force, is
that the defendant intended to create a kill zone; and (2) Thomas
Pineda, Jocelyn Solano, and Catarina Strickler was [sic] located
within the kill zone.” (Italics added.) The court listed the factors to
consider in determining whether defendant intended to create a kill
zone, including: “[t]he distance between the defendant and Thomas
Pineda, Jocelyn Solano, and Catarina Strickler; [¶] [and] [t]he
distance between Thomas Pineda, Jocelyn Solano, and Catarina
Strickler and the primary target [listed as Villegas].” Finally, it
instructed, “If you have a reasonable doubt whether the defendant
intended to kill Thomas Pineda, Jocelyn Solano, and Catarina
Strickler or intended to kill Louis Villegas by killing everyone in the
kill zone, then you must find the defendant not guilty of attempted
murder of Thomas Pineda, Jocelyn Solano, and Catarina Strickler.”
(Italics added.)
The jury was also instructed using CALRIM No. 200, which,
in relevant part, instructed, “You must follow the law as I explain it
to you, even if you disagree with it. If you believe that the
12
attorneys’ comments on the law conflict with my instructions, you
must follow my instructions.”
2. Prosecutor’s argument
The People argued two theories of liability for counts 3 and 4,
aiding and abetting and concurrent intent or “kill zone.” The
prosecutor argued:
“So let’s talk about the attempted murder. That applies to
Thomas Pineda, Catarina Strickler and … Jocelyn Solano[.] [¶] …
[¶] Now there are several theories. So we know … there w[ere]
four victims, two shooters. A lot of movement going on with the
shooters in pursuit of intended primary targets. And some of it,
just like I mentioned, when you are aiding and abetting, sometimes
you can be the perpetrator, sometimes you can be the aider and
abettor. And sometimes those roles can switch as you are
committing a crime taking out numerous victims. [¶] And the
example I think I left you with during voir dire was the bank …
robbery example as aiding and abetting. Remember, you had the
guy planning[,] … the guy who got the gun, … the driver … [and]
you had the robber themselves. And they were to commit a robbery.
[¶] All those other individuals who weren’t in the bank … [but]
helped facilitate that robbery can be guilty of aiding and abetting
for that bank robbery. [¶] But let’s say the example I gave you was
you have the robber with the gun, the driver, and let’s say they hit
one bank. And then they decide to switch roles going to a second
bank. [¶] You understand what I am saying? [¶] All right.
Obviously, the evidence tends to prove that Oscar Pantoja shot
Thomas Pineda …. [¶] … [¶] So, again, attempted murder, you
have a primary target, Thomas Pineda. Secondary target—keep in
mind how this unfolds. This is very dynamic. [¶] Again, and I will
say, all these counts you can find aiding and abetting, with the
exception, maybe, of Thomas Pineda, where [defendant] was the
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perpetrator.… [¶] Let me finish out this out, because you can go
with either one of these. [¶] With the secondary targets, when they
first come out of the car, keep in mind who their intended targets
were. Right in front of them is Thomas Pineda, where Oscar
Pantoja leveled his firearm and barrel onto. And standing next to
Thomas was Louis Villegas. [¶] So in that moment, as he is pulling
his gun out, right next to Thomas is Louis. So there’s what’s known
as a kill zone, because you are in close proximity to your intended
target, so you become a secondary target to your primary target
because you are close to that primary target. So when they first
jump out, Louis would have fallen within that kill zone. [¶] And
then Catarina—keep in mind, Oscar Pantoja is now moving towards
the Lexus in pursuit of his primary target, firing at his intended
target. Now he is bringing his fire closer to the Lexus and the
occupants of the Lexus. That would include Catarina and Jocelyn.
[¶] And then, like I said, aiding and abetting applies to these
counts as well. [¶] This just sort of illustrates how that would play
out on that aerial thing [(presumably referring to one of the aerial
maps)]. [¶] This could apply if those victims were not shot. You
understand? … [¶] But, again, you have these victims shot by
Andrew Salas and you have the aiding and abetting theory as it
relates to those other additional counts. And that’s where the kill
zone would shift. It’s not a static thing, particularly if the shooter is
moving and shooting. That kill zone changes as he changes his
orientation of fire.” (Italics added.)
The prosecutor tried again to discuss aiding and abetting by
reiterating CALCRIM No. 400 and returned to the robbery example,
“where the driver and robber can switch roles.” Then he explained
the role defendant played in planning and arranging the meeting
with Pineda and driving to the location and argued “defendant’s
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words or conduct did, in fact, aid and abet the perpetrator’s
commission of the crime”
3. Jury’s question
During deliberations, the jury asked for the definition of “the
kill zone” and “surrounding area/proximity.” Relevant here, the
court stated: “The application of the ‘kill zone’ theory does not apply
if the defendant had the intent to kill the victims named in the
attempted murder counts. As stated in CALCRIM 600, to convict
the defendant of the attempted murder of Thomas Pineda, Jocelyn
Solano, and Catarina Strickler, the People must prove that the
defendant not only intended to kill Louis Villegas but also either
intended to kill Thomas Pineda, Jocelyn Solano, and Catarina
Strickler, or intended to kill everyone within the kill zone.” (Original
italics and underscoring.)
Regarding the request to define surrounding area and
proximity, the court instructed: “As stated in CALCRIM 200, some
words or phrases used during this trial have legal meanings that
are different from their meanings in everyday use. These words
and phrases will be specifically defined in these instructions.
Words and phrases not specifically defined in these instructions are
to be applied using their ordinary, everyday meanings.”
C. Analysis
1. The kill zone instruction was not supported by
substantial evidence because the women were not
secondary targets
Fundamental to the kill zone theory is a particular
relationship between the primary target, the means of the attack,
and the secondary target. (See Mumin, supra, 15 Cal.5th at p. 203.)
Specifically, the would-be secondary targets (here, Solano and
Strickler) must be endangered not because they were specifically
targeted by defendant or Salas, but because “‘defendant has a
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primary target and reasons [that] he cannot miss that intended
target if he kills everyone in the area in which the target is
located.’” (Canizales, supra, 7 Cal.5th at p. 607.)
The evidence at trial established Salas approached the
passenger side of the Lexus and deliberately shot the women. His
stated motive was to eliminate witnesses. Strickler and Salas both
testified that Salas stood near the front passenger door and fired
twice at Solano before stepping to the side and shooting Strickler.
Four shell casings from a semiautomatic firearm were found on the
passenger side of the Lexus. This is also consistent with Strickler’s
and Salas’s testimony that Salas shot into the Lexus four times and
Salas’s testimony regarding his use of a semiautomatic firearm.
Because the evidence established that Strickler and Solano
were Salas’s primary targets, the kill zone doctrine, which
addresses attempted murder liability for secondary targets, has no
application.
2. The kill zone instruction was not supported by
substantial evidence because defendant’s actions
did not create a kill zone encompassing Strickler
or Solano
Evaluation of the factors from Canizales demonstrates the
evidence also does not support use of the kill zone theory based on
defendant’s own conduct. Defendant shot at Pineda four times
using a revolver. Defendant was not firing in the direction of the
Lexus. Instead, the evidence established defendant was firing in a
south/southwest direction as he chased Pineda, and the Lexus was
west of defendant. More importantly, nothing about the specifics of
his attack—use of a revolver, small caliber ammunition, four shots
fired in an open street with no one else around—demonstrates
defendant intended to create a zone of fatal harm around Pineda or,
16
even if he did, that the zone could reasonably extend to the Lexus
and its occupants. (See Canizales, supra, 7 Cal.5th at p. 607.)
At best, the evidence supports an inference defendant acted
with conscious disregard for the safety of others in the vicinity. As
the Court stated in Mumin, “though [the secondary target] was
placed in harm’s way, a concurrent intent instruction would only
have been warranted if defendant acted not with a mere conscious
disregard for life but with a specific intent to kill.” (Mumin, supra,
15 Cal.5th at p. 204.) We have no evidence of such specific intent by
defendant.
3. The court’s instruction misidentified defendant’s
primary target
As discussed, substantial evidence did not support
administering a kill zone instruction. This error was compounded
by the court’s misidentification of the primary target. CALCRIM
No. 600 as read to the jury incorrectly identified Villegas as
defendant’s primary target and listed Pineda, Solano, and Strickler
as the secondary targets located in the kill zone. However, the
evidence at trial consistently and overwhelmingly established
Pineda was defendant’s primary target.
The conflict between Pineda and defendant as a result of
Pineda leaving the gang was escalating. The conflict included
defendant repeatedly calling Pineda’s home and mutual disrespect
between the two men. Pineda understood violence would ensue if
he was to see defendant again and that he needed to “watch [his]
back.” The evening of the shooting, phone calls between defendant
and Villegas were for the purpose of arranging a meetup for
defendant and Pineda to settle their “beef” through a fist fight. At
the time of the shooting, defendant pursued Pineda and shot him.
Respondent asserts no error by the court because, just as
defendant was angry at Pineda for leaving the gang, “a reasonable
17
inference was that [defendant] was also upset with Villegas for
Villegas ‘defecting’ from the gang, and he had the intent to kill
Villegas for doing so” and because defendant spoke to Villegas in
arranging the meetup that evening. In a footnote, respondent
concedes “[t]here also was evidence that [defendant] intended to kill
Pineda” over their existing conflict, but asserts defendant “intended
to kill both men” and argues “intent to kill both Pineda and Villegas
did not mean there was insufficient evidence to support the kill
zone instruction [identifying Villegas as the primary target].” Not
so. There was no evidence of an ongoing “beef” between defendant
and Villegas or of defendant’s intent to harm, let alone kill,
Villegas. Moreover, there was no evidence defendant pursued
Villegas at the time of the shooting.
On the other hand, the evidence established Salas was angry
at Villegas and wanted to kill him. Melania, his girlfriend’s
daughter and long-time friend, accused Villegas of sexually
assaulting her some years earlier. The evidence also established
Salas, not defendant, pursued and shot Villegas. Thus, by
identifying Villegas as defendant’s primary target, the instruction
asked the jury to evaluate kill zone liability through a factual
premise directly contradicted by the record.
This error was not merely technical. “[E]xistence and location
of a primary target is important because those facts help define the
extent of the kill zone, which is necessary in order for the jury to
determine whether the secondary target was within that zone.”
(Mumin, supra, 15 Cal.5th at p. 209.) Thus, a juror attempting to
conscientiously follow the instruction as given would have been
working from a false foundation, asking whether Strickler and
Solano were within a zone of fatal harm created by defendant
around Villegas, when the evidence established that Villegas was
Salas’s target and defendant was pursuing Pineda.
18
4. The court’s response to the jury’s questions further
compounded the errors
The court’s response to the jury’s inquiry about the kill zone
and proximity created more issues. It erroneously reinforced
Villegas as the primary target and provided no meaningful
guidance on how the jury was to deal with the idea of “proximity” in
terms of the creation of a kill zone. It also introduced a confusing
framework for determining guilt for this nonshooter defendant. The
court told the jury, “The application of the ‘kill zone’ theory does not
apply if the defendant had the intent to kill the victims named in the
attempted murder counts” but went on to instruct, to convict
defendant of the attempted murders of the named victims using kill
zone, the People must prove that he intended to kill Villegas and
also either intended to kill the three named victims or intended to
kill everyone in the kill zone. (Italics added.)
While this description is legally correct to the extent that any
path to attempted murder liability for defendant had to include an
intent to kill each victim, it created a confusing circular path for the
jury. If they found defendant had the intent to kill the named
victims, they were instructed kill zone did not apply. However, in
the event they decided the kill zone did apply, defendant must have
intended to kill the named victims or create a kill zone. Moreover,
if the jury decided the kill zone theory did not apply because
defendant had the intent to kill the named victims, the instruction
gave the jury no guidance on where to go next. Of course, the only
other theory of liability for this nonshooter defendant would have
been aiding and abetting, but, as explained post, because the
prosecutor’s argument failed to fully develop that theory and wove
its explanation into the discussions about kill zone, the jury likely
did not understand the difference.
19
The court’s response to the jury’s questions reinforced the
factual error that Villegas was defendant’s primary target and
introduced new analytical challenges for the jury. As we now
discuss, these errors were aggravated by the prosecutor’s closing
argument, which identified a different primary target and
misdescribed the legal standard in ways that left the jury without a
legally sound, coherent framework for properly applying the kill
zone theory.
5. The prosecutor’s explanation of the kill zone
compounded the instructional errors
The prosecutor’s closing argument aggravated the errors
identified, ante. This was done in three distinct and significant
ways.
First, there was a direct contradiction between the
prosecutor’s argument pointing to Pineda as defendant’s primary
target and the court’s instruction, identifying Villegas as
defendant’s primary target. These two theories of kill zone liability
cannot be reconciled. The court asked the jury to find defendant
intended to kill Villegas and created a zone of fatal harm around
him. The People’s argument asked the jury to find defendant
intended to kill Pineda and created a kill zone that first included
Villegas and then shifted to encompass the women in the Lexus as
he pursued Pineda.3 Once Pineda and Villegas ran from the two
3 We note, the evidence strongly suggests the women in the
Lexus were never in the path of defendant’s fire. The Lexus was to
defendant’s right (west) as he shot at Pineda in front of him (south).
Three bullets struck property across the street from the Lexus: one
struck a minivan parked across the street on Parthenia Street,
consistent with a trajectory traveling north to south; one penetrated
a sliding glass door of an apartment, also consistent with traveling
north to south; and one struck a sedan parked nearly directly across
the street from the Lexus, with a southwest direction of travel.
20
armed men they went in separate directions and each was pursued
by their shooter. Pineda and Villegas could not have both been
defendant’s primary targets. “When 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.) Failure to
identify a primary target makes defining the zone of fatal harm
impossible.
Next, the prosecutor told the jury: “So there’s what’s known
as a kill zone, because you are in close proximity to your intended
target, so you become a secondary target to your primary target
because you are close to that primary target.”
This is a legally incorrect standard. Canizales is clear,
“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. [T]he kill zone theory does not apply where ‘the
defendant merely subjected persons near the primary target to
lethal risk.’” (Canizales, supra, 7 Cal.5th at p. 607, italics added &
citation omitted.) The prosecutor’s definition, proximity to the
primary target equals member of the kill zone, is precisely the
implied malice standard Canizales held insufficient. As noted by
Canizales, the definition offered by the prosecutor “was significantly
broader than a proper understanding of the theory permits. Indeed,
it essentially equated attempted murder with implied malice
murder.” (Id. at p. 614.)
Respondent argues the court used CALCRIM No. 200, which
instructed the jury that, in the event they found conflict between
the court’s instructions and the attorneys’ commentary, they were
to follow the law as explained by the court. This is true, and the
instruction is capable of curing many misstatements by the
21
attorneys, however, the prosecutor’s arguments created more than
one issue and, as discussed, some of the court’s instructions were
not supported by substantial evidence and created further
confusion.
Last, the prosecutor argued, as the shooting took place the
kill zone “shifted” as defendant chased Pineda and brought his fire
“closer to the Lexus and the occupants of the Lexus,” thus bringing
Strickler and Solano inside the kill zone. The prosecutor explained
further, the kill zone is “not a static thing, particularly if the
shooter is moving and shooting,” explaining the zone “changes as
[defendant] changes his orientation of fire.”
We have found no authority to support the idea of a moving or
shifting kill zone. Instead, such a theory contradicts established
authority, which defines the kill zone as a bounded area of fatal
harm created by a particular method of attack on a primary target,
not as a roving zone that tracks wherever the shooter happens to
point his weapon. Under the theory advanced by the People at
trial, a defendant could be held liable for the attempted murder of
anyone who happened to be near the trajectory of his fire at any
moment during an active pursuit of the primary target, regardless
of whether the method of his attack created a reasonable inference
that the defendant intended to create a zone of fatal harm. Again,
this is more properly described as pursuing the primary target with
a conscious disregard for the safety of those who may be nearby.
The court in Mumin found a similar prosecutorial description failed
because it “described an amorphous area” untethered to the
primary target and the defined scope of the zone. (Mumin, supra,
15 Cal.5th at p. 210.)
The prosecutor’s misstatements of the kill zone are illustrated
by his treatment of eyewitness Kim. During closing argument, the
prosecutor told the jury that Kim, who was sitting at the red light
22
at an intersection southeast of the shooting, was “sort of like in that
kill zone, if you want to call it that, or lethal zone of fire.” Kim was
a bystander, entirely uninvolved in the shooting events taking place
and was also in a location opposite the direction of defendant’s
pursuit and gunfire.
That the prosecutor would characterize a motorist stopped at
a red light as being within the kill zone confirms his argument
concerning the theory bore no relationship to the legal framework of
Canizales and Mumin. It bears repeating, Kim and others similarly
situated were individuals to which defendant consciously
disregarded the risk of harm.
6. Respondent’s theory of liability is untenable
On appeal, respondent asks this court to consider the
combined conduct of defendant and Salas in evaluating whether
substantial evidence supported the kill zone instruction. This
argument fails.
Respondent points to Bland, supra, 28 Cal.4th 313, People v.
Windfield (2021) 59 Cal.App.5th 496 (Windfield) and People v. Vang
(2001) 87 Cal.App.4th 554 (Vang) to support this point. Bland,
Windfield, and Vang do not support respondent’s position. Though
each case involved two shooters, that is where the similarities end.
The kill zone findings in those cases rested on the method of attack,
such that the shooters’ single unified attack created lethal danger
for everyone within the zone of fatal harm. The method of attack
allowed the factfinder to infer each shooter intended to kill everyone
in the kill zone in order to kill their primary target.
In Bland, a number of rounds by two shooters into the same
confined space—a car—at a single target cluster (Bland, supra, 28
Cal.4th at p. 318) “virtually compelled” a finding that the defendant
concurrently intended to kill the passengers (the secondary targets)
of the car (id. at p. 333). In Windfield, the primary and secondary
23
targets were walking “shoulder to shoulder” (Windfield, supra, 59
Cal.App.5th at p. 505) down the street, and the two shooters fired a
“hail of bullets” (id. at p. 519) at them with semiautomatic guns,
and, at one point, the secondary target even placed himself between
the shooters and the primary target, acting as a “shield” (id. at
p. 518). The court found, “when another person is standing very
close to the targeted victim, or has placed himself between the
shooters and the targeted victim, … we cannot imagine a more
appropriate application of the kill zone theory ….” (Ibid.) Finally,
in Vang, the nature of the attack—use of military-grade, wall-
piercing automatic weapons used to fire scores of bullets across the
entire front of an enclosed, inhabited structure—led to finding each
defendant intended “to kill every living being within the residences
they shot up.” (Vang, supra, 87 Cal.App.4th at p. 564.)
In each case, the fact that there were two shooters was
incidental to the kill zone finding. Instead, it was the cohesive
attack on a primary target in one defined space, as well as the
nature of the attack that made it reasonable to infer the
defendant(s) intended to kill everyone within that space. As
discussed, we have no such attack here. Respondent offers no
authority to support finding that 10 shots by two shooters fired in
different directions directly at four victims collectively constituted a
kill zone and our search reveals none.
Instead, the kill zone doctrine asks what this defendant did,
intended, and created. Canizales frames every element of the
inquiry in individualized terms, asking whether “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.” (Canizales, supra, 7 Cal.5th at p. 607, italics added.)
24
This individualized inquiry is not incidental. It demonstrates
the foundational principle of attempted murder: “The defendant’s
mental state must be examined as to each alleged attempted
murder victim.” (Bland, supra, 28 Cal.4th at p. 328.) A kill zone
allows a factfinder to infer a specific defendant’s intent from the
nature and scope of that defendant’s attack. Neither Canizales nor
any of the cases offered by respondent contains any language
suggesting that a reviewing court may aggregate the shots of
multiple defendants who were firing at different intended victims in
different locations to construct a collective kill zone that neither
defendant individually created. Extending the doctrine in this
manner would require reading language that does not exist into
opinions that carefully define the theory’s scope. Furthermore, such
a theory would dissolve the required mental state for attempted
murder under the kill zone theory. As discussed, kill zone liability
rests on an inference about what a particular defendant intended.
That intent must be specific to the defendant. (See Canizales,
supra, 7 Cal.5th at p. 607.)
Here, the evidence established defendant intended to kill
Pineda; Salas intended to kill Villegas; and, separately, Salas
intended to kill Solano and Strickler, as potential witnesses.
Aggregating defendant’s and Salas’s separate shootings to satisfy
the intent requirements of the kill zone would allow liability for
attempted murder without proof that defendant harbored the
specific intent to kill Strickler or Solano.
7. Prejudice
The errors identified ante—the factually unsupported
instruction, the instruction’s misidentification of the primary
target, the court’s response to the jury’s kill zone and proximity
questions, the direct contradiction between the court’s instruction
and the People’s arguments, and the prosecutor’s explanation and
25
argument regarding a kill zone—cumulatively establish that
reversal is required.
a. Prejudice standard
“When a jury has been instructed on both proper and
improper theories for conviction, the appropriate standard of
prejudice turns on the type of error involved. If the improper theory
‘is incorrect only because the evidence does not support it’ [citation],
reversal is not required if ‘a valid ground for the verdict remains,
absent an affirmative indication in the record that the verdict
actually did rest on the inadequate ground’ [citation].” (Mumin,
supra, 15 Cal.5th at p. 207, quoting People v. Guiton (1993) 4
Cal.4th 1116, 1129–1130.) This type of factually inadequate theory
is an error of state law subject to the harmless error standard
provided for in People v. Watson (1956) 46 Cal.2d 818, 836–837
(Watson). (Mumin, supra, at p. 207.)
“By contrast, a legally inadequate theory is not merely
incorrect because it is factually wanting but ‘because it is contrary
to law.’ [Citation.] When a given instruction misstates the law, the
more demanding standard of Chapman v. California (1967) 386
U.S. 18, 24, applies, requiring reversal unless the error was
harmless beyond a reasonable doubt. ‘“[L]egal error requires a
more stringent standard for prejudice … [because] jurors are
presumed to be less able to identify and ignore an incorrect
statement of law due to their lack of formal legal training.
[Citation.] Factual errors, on the other hand, are less likely to be
prejudicial because jurors are generally able to evaluate the facts of
a case and ignore factually inapplicable theories.”’” (Mumin, supra,
15 Cal.5th at p. 207.)
26
The Watson/Chapman4 prejudice distinction turns on
whether “a legally inadequate theory was conveyed to the jury” and
“there is a reasonable likelihood that the jury understood the kill
zone instruction in a legally impermissible manner.” (Canizales,
supra, 7 Cal.5th at pp. 613–614.) That standard is met where the
court’s instructions and counsel’s argument together create a
reasonable likelihood the jury convicted without finding the specific
intent to kill required to convict of attempted murder. (Ibid.)
b. Analysis
Preliminarily, we note we have already found the kill zone
instruction was factually unsupported in this case and that the
instruction should not have been administered. We also find the
additional errors, discussed ante, resulted in legally inadequate
theories being presented to the jury and, as a result, it is reasonably
likely the jury understood the kill zone instruction in a legally
impermissible manner. (See Canizales, supra, 7 Cal.5th at pp. 613–
614.) As such, we find the Chapman standard of prejudice applies,
and, for the following reasons, reversal is required.
First, the direct contradiction between the primary target
identified in the court’s instruction and the People’s argument left
the jury without any coherent legally or factually sound framework.
Mumin found Chapman applicable where the instruction and
argument each independently failed to properly define the kill zone
in terms of the primary target and the required intent. (Mumin,
supra, 15 Cal.5th at p. 210.) Here, the deficiencies are even greater.
Not only did each independently fail, but the two theories quite
literally pointed in opposite directions making defining the bounds
of the kill zone impossible.
4 Chapman v. California, supra, 386 U.S. 18 (Chapman).
27
Furthermore, we find it unlikely the jury would have known
how to simply disregard the faulty instruction where the People’s
argument added confusion to the issues.
Second, the prosecutor’s proximity definition, permitted the
jury to convict without finding that defendant intended to kill
everyone in a defined zone of fatal harm in order to ensure his
primary target’s death. In applying the definition supplied by the
prosecutor, the jury would have asked only whether Strickler and
Solano were “close to” or in “close proximity” to the primary target,
not whether the circumstances of defendant’s attack were designed
to kill everyone in a defined area in order to kill his primary target.
This definition permits a conviction based on implied malice rather
than specific intent to kill and is legally impermissible. (See
Canizales, supra, 7 Cal.5th at p. 614.)
Third, the prosecutor’s shifting kill zone argument permitted
conviction based on the direction of defendant’s pursuit rather than
on any finding about whether his method of attack demonstrated
his intent to create a zone of fatal harm. Under the People’s theory,
Strickler and Solano became members of a kill zone simply because
defendant moved in their general direction while pursuing his
target and firing his weapon. Here, too, defendant would not have
needed to intend to kill the women or kill everyone in a particular
zone of fatal harm.
We find the jury’s questions during deliberations revealing in
two respects. First, the inquiry discloses the jury was actively
attempting to apply the kill zone theory and thus, respondent’s
argument that the jury would have simply set aside a factually
wanting kill zone instruction cannot be established beyond a
reasonable doubt. Second, the inquiry demonstrates the jury was
wrestling with the meaning of proximity and defining the kill zone
28
in light of the prosecutor’s arguments and the identification of two
different primary targets.
Unfortunately, the court’s response to the jury’s questions did
not clear up any confusion and may have compounded it. The court
referred the jury back to part of CALCRIM No. 600, even italicizing
and underscoring the portion where the wrong primary target was
identified. The court’s response also introduced two new wrinkles:
(1) an analytical roundabout where if the jury found defendant
intended to kill the named victims, the kill zone theory did not
apply, yet if the jury decided the kill zone theory did apply, they
needed to find defendant intended to kill the named victims or
intended to create a kill zone; and (2) an analytical dead-end where
if they decided the kill zone did not apply because defendant had
the intent to kill the named victims, they were not guided where to
go next to find liability for this nonshooter defendant.
Of course, a separate ground for conviction existed in the form
of direct aiding and abetting. However, the record does not support
finding the aiding and abetting theory was adequately presented to
the jury, and we are unable to find the conviction rested on that
ground.
We note that direct aiding and abetting was the only
available theory to convict defendant of Villegas’s murder in count 1
and the evidence and argument adequately supported such a
finding. However, a similar showing was never made with regard
to the attempted murders of Strickler and Solano. The prosecutor’s
explanation of aiding and abetting in relation to counts 3 and 4 was
never fully developed, and the use of a bank robbery hypothetical
where the robber and the shooter “switch roles” was unclear.
Furthermore, rather than explain the application of aiding and
abetting and a kill zone as two separate theories of liability, the
prosecutor went back and forth between the two theories, making it
29
difficult to distinguish between the two or apply either theory
correctly.
While discussing the bank robbery example and how each
person playing different roles can be guilty of aiding and abetting
even after they switch roles, without warning, the prosecutor
pivoted to the kill zone and the “dynamic” nature of the kill zone in
this particular case. Quickly the discussion moved back to aiding
and abetting, addressing how defendant is liable as an aider and
abettor on every count except Pineda, and then back, to again
discussing the shifting kill zone.
Though an effort was made to address aiding and abetting by
saying, “[Y]ou have these victims shot by Andrew Salas and you
have the aiding and abetting theory as it relates to those other
additional counts,” the prosecutor switched back to kill zone by
saying, “And that’s where the kill zone would shift.”
Returning to aiding and abetting a final time, the prosecutor
explained defendant could be guilty as a direct perpetrator or as an
aider and abettor like in the robbery example, “where the driver
and robber can switch roles.” To establish defendant’s liability as
an aider and abettor, the prosecutor pointed to the role defendant
played in arranging and driving to the meeting with Pineda and
argued defendant knew Solano was in the car and “might have
known” Strickler was present—apparently an effort to establish
defendant would have known Salas would kill them.
The prosecutor argued “without [defendant’s] participation
throughout that day, Andrew Salas could not have committed the
murder or the additional attempt murders.” Perhaps, but
participation in the events throughout the evening, on its own, does
not establish defendant knew of Salas’s intent to kill Solano and
Strickler or that he intended to aid and abet Salas’s attempt to do
so. No witness provided any evidence to infer defendant would have
30
known of Salas’s intent to eliminate the women as witnesses.
Moreover, Salas, having testified to shooting all four victims, stated
he did not inform defendant of his intent to kill. Salas testified,
when he learned Solano was present, before the shooting, he
planned to kill her because he did not want to leave any witnesses.
During the shooting, when surprised with the presence of Strickler,
Salas decided to kill her for the same reason. Without evidence of
defendant’s knowledge of Salas’s intent to kill each woman, aider
and abettor liability for defendant is not established. (See
CALCRIM No. 401.)
Respondent asserts that Watson applies because “the record
[fails to] affirmatively indicate[] that [defendant’s] convictions …
actually rested on a kill zone theory.” For the foregoing reasons, we
are not persuaded and find the cumulative effect of these errors
conveyed a theory that was “‘contrary to law.’” (Mumin, supra, 15
Cal.5th at p. 207.)
Even assuming Watson harmless error applied, reversal is
required. Under Watson, reversal is warranted when it is
reasonably probable that a more favorable result would have been
reached absent the error. (Watson, supra, 46 Cal.2d at p. 836.) We
find the errors here satisfy even this standard. The factually
unsupported kill zone instruction was built around a false factual
scenario where Villegas was defendant’s primary target; the People
argued legally incorrect definitions of the kill zone; and the jury’s
questions tend to prove it absorbed them. The aiding and abetting
theory with regard to Strickler and Solano was not fully developed,
and the prosecutor’s argument repeatedly wove kill zone principles
into its explanation. Therefore, it is reasonably probable that at
least one juror, properly instructed on the kill zone, would have
found the theory was not satisfied on these facts and that the aiding
31
and abetting theory, as presented, would not have been a supported
alternative.
II. Sentencing
Defendant contends the trial court abused its discretion in
imposing the middle term on counts 5 and 7 because there were no
aggravating factors proven. We disagree.
Ahead of sentencing, defense counsel submitted a motion to
dismiss the prior strike conviction pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 on the grounds the strike was
remote. In it, counsel did not advance any mitigating
circumstances contributing to the offense.
During sentencing, the court explained in some detail the
egregious facts of the offense and noted, in its assessment, the case
could have been tried as a lying-in-wait special circumstances case.
The court detailed the ways the offense has affected the family of
Villegas, as well as the permanent consequences to each of the
surviving victims. The court observed, during the trial, defendant
presented “like a boy who was ready to go to the church choir” with
his glasses and grown out hair and upon conviction, defendant
“changed his appearance,” having arrived to court with a shaved
head “proudly displaying the tattoos of his gang … on the top of his
head.” The court declined to use its discretion to strike defendant’s
prior strike conviction.
Relevant here, section 1170, subdivision (b)(1) provides,
“When a … statute specifies three possible terms, the court shall, in
its sound discretion, order imposition of a sentence not to exceed the
middle term ….” (Italics added.) Section 1170, subdivision (b)(6)
provides, “Notwithstanding paragraph (1), and unless the court
finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary
to the interests of justice, the court shall order imposition of the
32
lower term if any of the following was a contributing factor in the
commission of the offense.” What follows is a list of mitigating
circumstances for the court to consider.
Here, as noted, no mitigating circumstances were presented
or argued by defense counsel. Section 1170, subdivision (b)(7)
allows the court to impose the lower term even without evidence of
mitigating circumstances. However, nothing in the section prevents
a court from using its discretion to impose the middle term where
there are no mitigating or aggravating factors to balance.
Accordingly, under section 1170, subdivision (b)(1), the court
was permitted to impose the lower or middle term. As noted, when
it imposed defendant’s sentence, the court explained the egregious
nature of the offense, the long-lasting effects on the victims, as well
as defendant’s apparent continued gang representation after the
jury was dismissed. We find the court acted within its sound
discretion in imposing the middle term pursuant to section 1170,
subdivision (b)(1).
DISPOSITION
The attempted murder convictions in counts 3 and 4 are
reversed and the matter is remanded with directions to allow the
People to elect whether to retry defendant on those charges without
use of the kill zone theory. The judgment is affirmed in all other
respects.
CHAVEZ, Acting P. J.
We concur:
RICHARDSON, J. GOORVITCH, J.
33