Trial court did not prejudicially err by giving kill zone instruction that did not identify the murder victim as the primary target and instead named an attempted murder victim as both the primary target and a secondary victim of the gun fire. A jury convicted Tran of second degree murder, attempted murder, and other charges, and found true gang and firearm use enhancements, based on evidence Tran’s passenger shot multiple times into a rival gang member’s car, killing Bui and injuring James. On appeal, Tran challenged the attempted murder conviction based on the trial court’s inartfully worded instruction on the kill zone theory of liability. Held: Affirmed on this point. When a defendant has intentionally created a “kill zone” to ensure the death of his primary victim, the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. (People v. Bland (2002) 28 Cal.4th 313, 329-330.) The circumstances in this case indicated Tran and his passenger intentionally created a kill zone around Bui, the murder victim, by firing a hail of bullets at the car that Bui was riding, and thereby intentionally exposed everyone in Bui’s car to the risk of death. The jury could reasonably infer that Tran not only intended to kill Bui but also everyone else in the car, including James. The trial court’s instruction did not identify the murder victim, Bui, as the primary target of the gunfire but instead named James as both the primary target and a secondary victim of the gunfire. This could have prejudiced the prosecution insofar as it effectively deprived it of the opportunity to obtain a conviction for attempted murder based on the theory of concurrent intent. It could not have prejudiced Tran because it expressly required the jury to find Tran harbored the intent to kill James in order to convict him of that offense. Therefore, any error in the wording of the kill zone instruction was harmless.
The case must be remanded to give the parties an opportunity to make a record of information that will be relevant at appellant’s future youth offender parole hearing. Tran argued that the case must be otherwise remanded so he can make a record of information that will be relevant to his future parole hearing. The Court of Appeal agreed. Penal Code section 3051 entitles certain inmates to a youth offender parole hearing 25 years into their prison sentence and the parole board must consider youth-related factors, such as the offender’s cognitive ability, character, and social and family background at the time of the offense, in determining parole suitability. (People v. Franklin (2016) 63 Cal.4th 261, 269.) The California Supreme Court recognized that assembling such statements about the individual before the crime is “typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.” (Id. at 283-284.) Tran’s sentencing hearing preceded Franklin, so it is unlikely that Tran would have been afforded a sufficient opportunity to present evidence bearing on his future suitability for parole. The court rejected the Attorney General’s argument that the probation report contained sufficient information to facilitate his future parole hearing because the report lacked information about Tran’s character, cognitive ability, psychological functioning, and maturity, and imparted “very little about what kind of 16-year-old appellant is other than the fact he is the kind who commits this crime.” The court remanded the matter to the trial court to permit the parties the opportunity to present evidence bearing on the factors discussed in Franklin.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G053424M.PDF
