P. v. Burke
Filed
12/24/12 P. v. Burke
CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff
and Respondent,
v.
PATRICK BURKE,
Defendant
and Appellant.
D059603
(Super. Ct. No. SCD217582)
APPEAL
from a judgment of the Superior Court of
County, Yvonne E. Campos, Judge. Affirmed.
A jury
found Patrick Burke guilty of two counts of
building and assault with a semiautomatic firearm. The jury also found true gang and other
enhancements attached to the counts.
Burke appeals, contending his two attempted murder convictions must be
reversed because (1) there was insufficient
evidence that he had the specific intent to kill, and (2) the trial court
gave erroneous instructions on the kill zone theory of attempted murder. We affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
In
August 2008, the Static Lounge, a bar in downtown San Diego, put on a
music event to unite two rival gangs, the Bloods and the Crips. That night, officers patrolling the area made
contact with Burke, a documented West Coast Crip member, and conducted a field
interview. Burke was with Johnny Hill, a
Neighborhood Crip member. Hill told the
officers that they had just come from the bar.
John Nygren, a security guard working outside the Static Lounge, had
seen Burke walking up and down the street near the bar multiple times that
night.
During
the music event, a performer yelled out, "Fuck the Crips." The crowd got worked up and a fight broke
out. Nygren saw a man on top of the bar
making gang signs and being pulled down into the crowd. More than 50 people ran outside the bar where
the fight continued and escalated.
Nygren,
who was standing near the bar's door, heard five or six gunshots. He then saw blood coming from his neck and
dropped to one knee. As the commotion
ensued, Daniel Espinoza, a security guard near the door of the Static Lounge,
heard gunshots and saw someone running in the street and a "muzzle
flash." Similarly, Victor Gonzalez,
another security guard, heard gunshots and saw a black male running in the
street approximately 10 to 15 feet away from him. The man appeared to be shooting with his
right hand across his body. Gonzalez
pulled out his gun and pointed it at the person running because he believed
that person was the shooter. At trial,
Gonzalez confirmed that Burke was the shooter.
Officers
found five bullet casings near the Static Lounge. One bullet struck a lamppost approximately
five feet above the level of the sidewalk.
That bullet fragmented and a portion of it hit Nygren. Another bullet hit the marquee of the Static
Lounge, ricocheted off the ceiling in the foyer of the bar, and struck the
door. Officers also saw that a bullet
pierced the interior foyer window frame and another struck the exterior of the
building approximately ten feet above the sidewalk.
DISCUSSION
I. Sufficiency
of the Evidence
Burke
contends that his two attempted murder convictions must be reversed because
there was insufficient evidence that
he had the specific intent to kill.
Specifically, he argues that the evidence showed a conscious disregard
for life rather than a specific intent to kill because he fired randomly as he
ran down the street with the shots too high or too wide to hit anyone and he
did not target a specific victim. We
reject Burke's arguments.
In
reviewing the sufficiency of the evidence to support a conviction, we determine
" 'whether from the evidence, including all reasonable inferences to
be drawn therefrom, there is any substantial evidence of the existence of each
element of the offense charged.'
[Citations.]" (
83, 139, fn. 13.) Under this standard,
we review the facts in the light most favorable to the judgment, drawing all
inferences in support of the judgment to determine whether there is substantial
direct or circumstantial evidence the
defendant committed the charged crime. (
469, 496; People v. Rodriguez (1999)
20 Cal.4th 1, 11.) The test is not
whether the evidence proves guilt beyond a reasonable doubt, but whether
substantial evidence, of credible and solid value, supports the jury's
conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.) In making the determination, we do not
reweigh the evidence; the credibility of witnesses and the weight to be
accorded to the evidence are matters exclusively within the province of the
trier of fact. (Evid. Code, § 312.)
The crime of attempted murder
includes the element of a specific intent to kill. (People
v. Visciotti (1992) 2 Cal.4th 1, 56.)
"Intent to unlawfully kill and express malice are, in essence, 'one
and the same.' [Citation.] To be guilty of attempted murder . . . ,
defendant had to harbor express malice toward th[e] victim. [Citation.]
Express malice requires a showing that the assailant ' " 'either
desire[s] the result [i.e., death] or know[s], to a substantial certainty, that
the result will occur.'
[Citation.]" '
[Citations.]" (
739 (Smith).)
Whether the defendant harbored the
specific intent to kill may be inferred from the facts and the circumstances
surrounding the act. (
938, 945–946.) Thus, the nature of an
assault, the weapon chosen, the manner in which the weapon was used, the actual
consequences of the assault, including the nature of the wound, can all provide
evidence of the intent to kill necessary for attempted murder. (See Id.
at p. 946.) For example, firing a gun
toward a victim at close range "in a manner that could have inflicted a
mortal wound had the bullet been on target is sufficient to support an
inference of intent to kill . . . ."
(Id. at p. 945.) That "the victim may have escaped death
because of the shooter's poor marksmanship [does not] necessarily establish a
less culpable state of mind." (
In addition, "even if the shooting was not premeditated, with the
shooter merely perceiving the victim as 'a momentary obstacle or annoyance,'
the shooter's purposeful 'use of a lethal weapon with lethal force' against the
victim, if otherwise legally unexcused, will itself give rise to an inference
of intent to kill.
[Citation.]" (
Viewing
the evidence in the light most favorable to the judgment, as we must, there was
sufficient evidence to support the attempted murder convictions. The evidence showed that Burke was only 10 to
30 feet from the front door of the Static Lounge. He fired five shots, many of which were in
the direction of the bar, as people poured out of it. Bullets hit the bar's marquee, the interior
foyer window frame and the exterior of the building. Burke's act of discharging a firearm multiple
times near a large crowd at close range supports the inference that he shot
each time with the intent to kill. The
fact that some of the shots were high or wide of the crowd and that the only
injury resulted from a bullet fragmenting after hitting a lamppost does not
compel a different conclusion.
Considering that Burke was running and shooting across his body, the
direction of the shots is not surprising.
However, "poor marksmanship" does not negate the intent to
kill. (People v. Lashley,
We are
also not convinced by Burke's argument that he did not have the requisite
intent for attempted murder because he did not target a specific
individual. A person can be guilty of
attempted murder if the person purposely creates a kill zone intending to kill,
not a specific target, but anyone present within the kill zone. (People
v. Stone (2009) 46 Cal.4th 131, 140 (Stone)
[describing, as an example, a terrorist who places a bomb on a commercial
airliner intending to kill as many people as possible without knowing or caring
who they are].) An identifiable primary
victim is not necessary for the kill zone theory to apply as "[t]he mental
state required for attempted murder is the intent to kill a human being, not a particular
human being." (Id. at p. 134.) Similarly,
when a defendant fires a gun at a group of people with the intent to kill a
primary target in that group, a charge of attempted murder of someone else in
the group can be sustained if " '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.' " (People
v. Bland (2002) 28 Cal.4th 313, 329–330.)
There was evidence in this case from
which the jury could reasonably conclude that Burke's primary targets were
Blood gang members exiting the Static Lounge and that he created a kill
zone. The gang expert testified that it
is common for gang members to commit shootings in locations where they know
rival gang members will be present. That
type of shooting gains notoriety for the gang.
Further, the shooter gains prestige within the gang regardless of
whether he hit the intended target or an innocent victim.
While Burke's primary targets were
rival gang members, he used lethal force designed to kill everyone in the area
around his targeted victims as the means to accomplish his goal. Under the circumstances in this case, a
rational jury could conclude beyond a reasonable doubt that Burke intended to
kill not only rival gang members, but also others in the zone of harm. (Smith,
supra, 37 Cal.4th at p. 746.) Thus, he had the requisite intent for
attempted murder.
In sum, we conclude there was
substantial evidence to support the intent element of Burke's attempted murder
convictions.
II. Kill
Zone Theory Instructions
A. Background
The
People charged Burke with two counts of attempted murder (counts 1–2). Count 1 did not name a specific victim, while
count 2 named Nygren. On both counts,
the trial court instructed the jury with a modified version of CALCRIM No. 600
regarding attempted murder. In both instructions,
the trial court included an optional paragraph regarding the "kill
zone" theory of attempted murder.
Specifically, the trial court informed the jury of the following:
"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 John
Nygren, the People must prove that the defendant not only intended to kill Blood
gang members but also either intended to kill John Nygren, or intended to kill
everyone within the kill zone. If you
have a reasonable doubt whether the defendant intended to kill John Nygren or
intended to kill Blood gang members by killing everyone in the kill zone, then
you must find the defendant not guilty of the attempted murder of John
Nygren."
In
regard to count 1, the prosecutor argued that "Count 1 is for Blood gang
members. With murder and attempt[ed]
murder, it is not who, it's the act that we're looking at. We're not concerned about whether the
defendant was trying to kill a specific person.
It is the act that we're looking at.
In this particular case, the People have charged that the defendant was trying
to kill any -- trying to kill every Blood member that came out of the Static
Lounge. So that's why we charged that
for Count 1. That's in regards to every
Blood member coming out of the Static Lounge.
The defendant is trying to kill those people. So that is attempt[ed] murder for Count
1."
In
regard to count 2, the prosecutor stated, "Now, obviously, [Nygren] is a
victim of attempted murder. The theory
behind [Nygren] was not that [Burke] was trying to kill [Nygren], specifically,
that he was aiming for that person that he knew to be [Nygren], or that person
he knew to be the security guard. But
rather, when he intended to kill every Blood gang member that came out of the
Static Lounge, he created what we call in the law a kill zone. [Nygren] was the victim of the defendant's
attempts, because the defendant was trying to kill everyone who came out of the
Static Lounge so that he could get to Blood gang members. And that's what we call the kill
zone." The prosecutor gave examples
of situations in which the kill zone theory applies and explained that the
perpetrator's intent is to "kill everyone to get to their intended
target." The prosecutor then
argued, "That's exactly what happened in this case. So that's why you have two counts of
attempt[ed] murder, one for the gang members and two for everyone else the
defendant tried to kill in his attempts to get to those Blood gang
members."
B. Standard of Review
The applicable standard of review
that guides our analysis with respect to Burke's claims of instructional error
was explained by the Court of Appeal in Mock
v. Michigan Millers Mutual Ins. Co.
(1992) 4 Cal.App.4th 306, 335 (Mock): " '[E]rror
in instructing the jury shall be grounds for reversal only when the reviewing
court, "after an examination of the entire cause, including the
evidence," concludes that the error "has resulted in a miscarriage of
justice." The test of reversible
error has been stated in terms of the likelihood that the improper instruction
misled the jury. [Citation.]' [Citations.]
Thus, if a review of the entire record demonstrates that the improper
instruction was so likely to have misled the jury as to become a factor in the
verdict, it is prejudicial and a ground for reversal. [Citation.]" The Mock
court also explained that " '[t]he determination whether, in a
specific instance, the probable effect of the instruction has been to mislead
the jury and whether the error has been prejudicial so as to require reversal
case, including the evidence and the other instructions given. No precise formula can be drawn.' [Citations.]" (Mock,
supra, 4 Cal.App.4th at p. 335; see
also People v. Smithey (1999) 20
Cal.4th 936, 963 [stating that the relevant inquiry is whether "there is a
reasonable likelihood that the jury misunderstood and misapplied the instruction"];
People v. Cain (1995) 10 Cal.4th 1,
35–36 [same].) We determine the
correctness of jury instructions " ' "from the entire charge of the court, not from a consideration
of parts of an instruction or from a particular instruction." ' " (People
v. Solomon (2010) 49 Cal.4th 792, 822.)
C. Analysis
1. Application
of Kill Zone Theory to Count 2
Relying
on Stone, Burke first argues that the
trial court erred in instructing the jury on the kill zone theory with respect
to count 2 because that theory does not apply where the charge names a specific
victim. We reject his argument.
In
and convicted of a single count of attempted murder for firing a single shot at
a group of ten people. (
Our high court found that the trial court erred in instructing the jury
on the kill zone theory. (
zone theory simply di[d] not fit the charge or facts of th[at] case"
because "
'[t]here was no evidence . . . that [the defendant]
used a means to kill the named victim . . . that inevitably would result in the
death of other victims within a zone of danger.' " (Ibid.) However, the court clarified that "a
person who intends to kill can be guilty of attempted murder even if the person
has no specific target in mind. An
indiscriminate would-be killer is just as culpable as one who targets a
specific person." (
Here,
count 2 specifically alleged that Burke attempted to kill Nygren. However, the prosecutor clarified that the
theory behind count 2 was not that Burke was trying to kill Nygren, but rather
that he targeted Blood gang members exiting the Static Lounge and thus created
a kill zone. Unlike Stone, there was evidence in this case that Burke used a means to
kill his target that could result in the death of others in the zone of
danger. He fired five shots, many of
which were in the direction of the bar and a large crowd. By doing this, Burke created a kill
zone. Further, we note that Burke did
not object at trial to the prosecutor's theory of guilt and does not argue on
appeal that he was prejudiced by the variance between the pleading and the
prosecutor's theory at trial. Rather,
his defense at trial was based on a theory that he was not the shooter. His defense did not pertain to the identity
of the victim. Under these
circumstances, a kill zone instruction on count 2 was proper.
2. Effect
of Identical Instructions on Counts 1 and 2
Burke
next argues that the kill zone instructions were erroneous because
(1) they allowed the jury to convict on count 1 based upon an intent to
kill Nygren, and (2) they allowed the jury to convict twice based on the same
act and intent to kill the same person.
We reject Burke's arguments.
We are not convinced that the kill
zone instructions caused the jury to convict Burke on count 1 based upon an
intent to kill Nygren. Although the jury
instruction stated that "the People must prove that the defendant not only
intended to kill Blood gang members but
also either intended to kill [Nygren],
or intended to kill everyone within the kill zone," that theory was
clarified by the prosecutor during closing argument. The prosecutor stated that count 1 pertained
to Burke's attempt to kill Blood gang members and that the People's theory was
Nygren, but rather that Burke created a kill zone.
Although the jury instruction was
inartful, it is not reasonably likely that the jury interpreted the instruction
in the way Burke asserts. There was
substantial evidence in the record to support the conviction on count 1 for
attempting to murder Blood gang members.
As we previously noted, the gang expert testified that it is common for
gang members to commit shootings in locations where they know rival gang
members will be present. Burke did
exactly that by discharging his firearm multiple times in the direction of the
bar as people exited. Further, the
prosecutor very specifically identified the theories of attempted murder on both
counts and there was no evidence of jury confusion.
Based upon the prosecutor's arguments
and evidence presented at trial, it is unreasonable to conclude that the jury
convicted on count 1 based upon an intent to kill Nygren. Thus, we turn to Burke's argument that the
instructions allowed the jury to convict twice based on the same act and intent
to kill the same person.
While
we find that the court erred in giving an inartful identical kill zone
instruction on counts 1 and 2, we again conclude it is not reasonably likely
that the jury interpreted the instructions as Burke asserts. As we already explained, the prosecutor
detailed the People's theory of attempted murder on both counts and the jury
did not express any confusion. Further,
it is unlikely that either conviction was based on an intent to kill Nygren
because the prosecutor specifically stated that was not his theory. Instead, the People's theory was that count 1
was for Burke's attempt to kill rival gang members and count 2 was for his attempts
to kill everyone else in the zone of danger.
There was substantial evidence to support the convictions on these
theories.
Burke's argument may have been more
convincing if he only fired his weapon one time, but that is not the case
before us. Burke fired five separate
shots toward a crowd of people. Those
five shots could support separate attempted murder charges based on distinct
acts. Given the evidence and prosecutor's
arguments, we conclude it is not reasonably likely that the jury misapplied the
instructions in the manner Burke claims.
DISPOSITION
The
judgment is affirmed.
McINTYRE, J.
WE
CONCUR:
NARES, Acting P.
J.
O'ROURKE,
J.
