People v. Melson

WEINGART, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA143199) APPEAL from a judgment of the Superior Court of Los Angeles County, Sean D. Coen, Judge. Affirmed in part and reversed in part with directions. David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

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On the evening of January 13, 2017, Samuel Navarrete, Raul Garibay, and Pedro Sabino were sitting in Navarrete's car at 106th Street in the Hacienda Village Housing Project. Garibay was a member of the Village Boys gang. Navarette was associated with the gang but not a member; Sabino was neither a gang member nor associated with a gang. 106th Street marks the territorial boundary between the Village Boys and the Hacienda Village Bloods. Defendant Alonzo Devon Melson, who was a member of the Hacienda Village Bloods, and a fellow gang member walked up to Navarrete's car and asked where the occupants were from. They then fired at least 15 gunshots into the car, killing Navarrete. Neither Garibay nor Sabino was injured. A jury convicted Melson of Navarrete's murder, the attempted murders of Garibay and Sabino, shooting at an occupied motor vehicle, being a felon in possession of a firearm, and found true various special allegations.

Hacienda Village Housing Project, located in Watts, has since been renamed Gonzaque Village. (See <http://home.hacla.org>, as of Mar. 27, 2020.) To avoid confusion, we refer to it by its previous name.

On appeal, Melson contends the attempted murder convictions must be reversed based on the trial court's improper jury instruction on the kill zone theory. He also argues the trial court erred in denying his new trial motion. Finally, he contends (and the People agree) that the case must be remanded to allow the trial court to exercise its newly-granted discretion to strike, if appropriate, the prior serious felony enhancement imposed on several counts of conviction.

We agree Melson's attempted murder conviction as to Sabino must be reversed. We also concur the matter must be remanded to allow the trial court to consider whether to strike Melson's prior serious felony enhancements. In all other respects, we affirm the judgment.

FACTUAL BACKGROUND A. Background Information

The Village Boys, a Latino gang, and the Hacienda Village Bloods, an African-American gang, are active in the area of the Hacienda Village Housing Project in Los Angeles. The border between the two gangs' territories is 106th Street, with Hacienda Village Bloods territory to the north and Village Boys territory to the south. The Village Boys and Hacienda Village Bloods at one time had a good relationship. Toward the beginning of 2017, that relationship had deteriorated, and there had been violence between the two gangs.

Garibay was a Village Boys gang member with the moniker "Little Bugsy." Sabino was not a Village Boys member, but his brother, known as "Blackie," was. Navarrete and Blackie were close friends, and Navarette (known as "Fresh") was associated with the Village Boys through Blackie but was not a member.

Melson was known as "Little Tank" or "Yank." Melson was about five feet five or six inches tall. He had a tattoo over his right eyebrow. Robbie Robinson, known as "Chops," was also a member of the Hacienda Village Bloods. Robinson was about six feet two or three inches tall.

Sometime before January 13, 2017, Navarrete was driving through the neighborhood when a man threw a rock at Navarette's car. Navarrete got out of his car and asked the man why he did that. The man said he was a Hacienda Village Blood. B. The Events of January 13, 2017

1. A Dispute Between Members of the Village Boys and the Hacienda Village Bloods

At about 8:00 p.m., Georgina Araiza, who lived in Hacienda Village by 106th Street and Firth Avenue, was outside her home and observed a group of people in Miguel "Fatty" Aleman's yard; Aleman was a member of the Village Boys. Araiza's son was in the yard. Although Araiza did not recognize any of the other people in the yard, she thought they were probably members of the Village Boys.

Araiza saw Robinson in the street by Aleman's yard; he was "going off" on Aleman. Robinson was wearing a brown outfit, including a brown hoodie. Araiza also saw Melson across the street. He was wearing a red hoodie. Araiza had seen Robinson and Melson in the neighborhood before. Melson and another man, whom Araiza had never seen before, were watching Robinson argue with Aleman. The other man was skinny and hunchbacked, wearing a black hoodie.

After watching the argument for a few minutes, Araiza went inside her home.

2. The Shooting

Navarrete picked up Sabino at about 8:00 p.m. Sabino sat in the front passenger seat of Navarrete's car. They drove to 106th Street by Firth Avenue and parked. They remained there because Navarrete was waiting for a friend to join them.

At about 8:30 p.m., two men in hoodies approached Navarrete's car. Sabino testified that they were "probably" African-American. He estimated that the shorter of the two was about five feet six to eight inches tall, and the taller man was six feet two to four inches tall. The shorter man was wearing a black hoodie and a black beanie and was carrying a handgun. Sabino identified the gun he saw as "[p]robably a Glock." Sabino told Navarrete the man had a gun, and they should leave. Navarrete responded that he wanted to "chill" and to see what the men wanted.

The shorter man knocked on the driver's side door, and Navarrete opened the door. The man asked Navarrete where he was from. Navarrete said he was Fresh from the Village Boys. The man asked who was in the car, and Garibay said "It's me Little Bugsy." It seemed to Sabino that Garibay knew the man.

A couple of seconds later, the shorter man began shooting into Navarrete's car; Sabino ducked down and could not see where the man was aiming. Sabino saw the man aim into the backseat and pull the trigger four times. However, the gun just clicked because it was out of ammunition.

Araiza heard about 15 gunshots fired in rapid succession. After the shooting stopped, she ran outside to check on her son. She testified that she saw Robinson, Melson, and the skinny hunchbacked man. Robinson was pointing a gun; he fired two shots. Melson, still wearing the red hoodie, was running away from Navarette's car toward the housing project. Araiza thought she saw Melson holding a gun, but she never saw him fire it.

During the investigation, the police learned that Robinson was murdered in Louisiana a few months after the shooting.

Sabino raised his head after the shooting stopped. He saw the two men who had approached the car running away. Sabino and Garibay moved Navarrete, who had been shot, to the front passenger seat. Sabino then drove to the hospital. Navarrete died from a gunshot wound to the left side of his torso. He was also shot in both arms and his right thigh.

C. The Investigation

1. Physical Evidence

The police recovered multiple nine-millimeter shell casings at the scene of the shooting. None of the shell casings had fingerprints or usable DNA. According to Los Angeles Police Detective Patrick Flaherty, the recovered shell casings indicated that only one gun was used in the shooting. If a second gun was used, it would have been a revolver that did not leave shell casings at the scene. Detective Flaherty also testified that a Glock probably would not click repeatedly if it were out of ammunition.

The police never recovered the gun(s) used in the shooting.

The police recovered Navarrete's car from the hospital. There were bullet impact marks around the driver's seat, as well as both the exterior and interior of the car. One bullet penetrated the left side of the front passenger seat. The rear passenger side door window was shattered, and the door had bullet marks on its interior and exterior.

Detective Flaherty noted graffiti found near the scene of the shooting. On a tree about 30 feet from the scene were the letters "HVB"; on the ground below was the word "Tank." On a nearby building, the letters "VBS" were crossed out, and "HVB" and an arrow pointing down had been written. This suggested that the area was disputed territory between the Village Boys and Hacienda Village Bloods.

2. Sabino's Identification of Melson

Detectives Flaherty and David Marcinek interviewed Sabino the morning after the shooting. Sabino was only "somewhat cooperative"; he told the detectives that he needed a couple of days to clear his mind and give them a better description of the shooter. Police later learned Sabino had called Blackie while driving Navarrete to the hospital. Blackie told Sabino not to cooperate with the police. Additionally, Sabino worried about what might happen to his family if he cooperated with the police.

Sabino returned to the police station on January 16. During this interview, the detectives showed Sabino 18 photographs of possible suspects. Sabino narrowed them down to three. From those three, he selected a photograph of Melson, but he was not certain of that identification. Sabino identified Melson in court as the person whose photograph he had selected and as the person who shot Navarrete.

3. Araiza's Identification of Melson

The police went to Araiza's house after the shooting, but she did not speak to them at that time. She was upset and scared for her family's safety. However, on January 26, she went to the police station for an interview. The police showed her a lot of photographs. She identified Melson from the photographs. She could not recall if she told the police she saw Melson with a gun.

About a month later, members of the Hacienda Village Bloods started pointing guns at her house. She was afraid for her safety and that of her children. Eventually, she moved out of her house. She testified at trial because she felt bad for Navarrete's mother, who "was asking for somebody to step up and say something."

Before the trial that ended in Melson's conviction, Araiza previously testified that she did not see Melson holding a gun or running away from Navarrete's car. She explained that at the time she made those statements, she was afraid of retaliation. She was no longer afraid, because she no longer lived in Hacienda Village. Additionally, members of the Hacienda Village Bloods and another gang recently ran over her son, permanently injuring his leg. She believed this assault was in retaliation for her testimony.

This prior testimony was given during Melson's first trial, which ended in a hung jury.

4. Beltran's Interview

The police arrested Juan Beltran, a member of the Village Boys known as "Too Short," on a firearm charge on January 17, 2017. Los Angeles Police Detective Manuel Moreno, who was also investigating the Navarrete murder, and his partner, Detective Pierce, interviewed Beltran the following day. Detective Moreno had known Beltran for a number of years. Prior to the interview, Detective Moreno told Beltran that he would write in his report what Beltran told him: "You pulled up in [a] driveway. Officers told you to get out of the car. They found the gun lying there." He told Beltran he would see what he could do for him, but he did not promise him any favors.

Detective Moreno recorded his interview with Beltran, although he told Beltran he was not recording it in order to get Beltran to talk more freely. The recording was played for the jury.

Beltran said he left the area five minutes before the shooting. However, he explained that the shooting "wasn't hood shit. It was personal," and Navarrete was specifically targeted. That was why the others in the car weren't shot. It had to do with tagging.

Several months earlier, a Hacienda Village Bloods member named "Quaney" had "banged on" Navarrete for driving in his neighborhood. Navarrete got out of his car and confronted Quaney but refused to fight with him. Quaney later got into a confrontation with Blackie over graffiti that Blackie put up near the scene of the shooting. Beltran told the detectives that his "homie" beat up Quaney, but he refused to identify the homie.

Detective Flaherty investigated whether Quaney was involved in the murder. He learned Quaney's identity, but found no evidence linking Quaney to the shooting.

Beltran told the detectives that Melson called him to find out what was up with Blackie. Melson indicated that Beltran should tell Blackie not to put up graffiti that was disrespectful to the Hacienda Village Bloods, or Melson would "get down" with him. Beltran added that that he did not trust Melson, who was "a ticking time bomb."

In response to questioning, Beltran told the detectives that he heard about what happened from Garibay. He advised the officers that Garibay would not talk to them about what happened.

At trial, Beltran testified that he told the detectives what he thought they wanted to hear, without regard to whether it was true or not. His girlfriend was pregnant, and he was trying to avoid going to jail. He also claimed not to recall telling the detectives many of the things he said because, at the time of the interview, he "was under the influence, high, drunk."

5. Garibay's Interview

Detectives Flaherty and Marcinek interviewed Garibay on February 21, 2017. According to Garibay, he, Navarrete, and Sabino were in the car, waiting for Beltran. Two African-American men walked up; one of them asked Navarrete where he was from. Navarrete responded that he did not gangbang. The man then asked Sabino and Garibay where they were from. Garibay told him where he was from but said the other two "didn't bang. . . . And then that's when he started trying to shoot at Fresh. And then out of nowhere, . . . that's when he start trying to shoot at me too in the backseat." He felt a bullet hit the seat, but he was not hit.

At trial, Garibay testified that only one man approached the car. He was about 5 feet 11 inches tall and appeared to be Hispanic. He was wearing a hoodie and had a bandana over his face. Garibay denied telling the police that two African-American men approached the car, and that one was about 5 feet 7 to 8 inches tall.

After Sabino took Navarrete to the hospital, Garibay walked away toward 107th Street. He met up with Aleman as he walked. He returned to the scene sometime later and told Beltran what had happened.

At trial, Garibay testified that he did not know Beltran, did not tell the police he saw Beltran after the shooting, and did not tell Beltran that Navarrete had been shot.

Garibay described the shooter as "midsize." He said he would not identify the shooter for the detectives. Garibay acknowledged he knew who Melson was, identifying him as "Little Yank." However, he claimed not to have seen Melson on the day of the shooting. He then stated that he had known Melson for a long time; the two had problems in the past, but not recently.

Garibay also discussed the problems between Quaney and Blackie. He "heard they had got into a little altercation, but the homies had talked to Quaney, and they talked it out. It was just a little misunderstanding." Later Quaney and one of Garibay's "homies" had a fight regarding the graffiti.

At trial, Garibay denied knowing Melson, claiming he had never seen him before in his life. He denied knowing Quaney or ever hearing his name before. He denied knowing anything about a dispute over tagging or talking to Melson about it.

6. Recorded Jailhouse Conversations

Melson was arrested in January, released, and arrested again in February 2017. Beltran and Aleman were also arrested. On March 23, the police arranged for Beltran and Aleman to be placed in a holding cell together, for Melson to be placed on a bench outside their cell, and for conversations among the three to be recorded.

In the initial conversation between Beltran and Aleman, Aleman told Beltran that Melson had been arrested for drugs. Beltran speculated that the police had no "hard evidence" on Melson for the murder. He said he would not help the police get evidence against Melson, since the police had done nothing for him.

Melson was then placed on the bench. Beltran told Melson that Aleman was there with Beltran, and that the police wanted to talk to Beltran about a homicide. Melson told Beltran he was supposed to be released soon. While Melson was talking to a deputy, Beltran told Aleman to "[t]ell that nigga if I see him on the street, I'm gonna kill that homie." Detective Marcinek, who was monitoring the conversation, believed Beltran was talking about killing Melson.

Melson rejoined the conversation, and Beltran told him that once he got out of jail, Beltran was going to be about the business and was going to stay solid. According to Detective Marcinek, staying solid meant not snitching.

Beltran and Aleman then talked, and Beltran mentioned that the police had not known that Garibay was in the car. Beltran suggested that Sabino spoke with the police, because he was not a gang member. Beltran said the police were trying to get Melson, but they had nothing on him, so they were trying to get information from Beltran and Aleman. Beltran believed the police had been watching Melson, and that was how they caught him with drugs. Aleman suggested that the police wanted to get Quaney too. Beltran told Aleman the only thing the police were worried about was finding the murderer. If Beltran had not been in jail, he would have killed Melson himself.

After Melson returned to the conversation, Beltran told him that the only person he had to worry about was Sabino, who was not "from the set or nothing." Melson asked if Sabino lived on 108th Street. Beltran responded that he did not; he stayed somewhere else. Beltran said he would look into the matter for Melson. Beltran then told Melson that the police took his phone after he was arrested and asked him when he last spoke to Navarrete, trying to catch him in a lie. Beltran told them he talked to Navarrete shortly after he left the "hood," before the shooting. Then, when he "came back to the hood, nobody was there."

7. Beltran's Testimony

At trial, Beltran testified that he remembered telling the prosecutor prior to the preliminary hearing in this case that he called Navarrete for a ride to the projects because the person who was supposed to give him a ride was late. Beltran did not recall telling the prosecutor that his ride then showed up and took him, Garibay, Sabino, and another person to a convenience store, after which the others left without him. He also did not recall telling the prosecutor that Garibay told him Navarrete had been killed.

Beltran also testified that he did not recall any of the conversation with Aleman or Melson at the jail.

8. Melson's Arrest and Interview

On May 16, 2017, the police arrested Melson for Navarrete's murder. Melson waived his rights and spoke to Detective Marcinek. He told the detective that at the time of the murder, he was in Anaheim with family. Detective Marcinek was never able to locate any of Melson's family members in Anaheim to verify the alibi.

Melson challenges the accuracy of this testimony about his whereabouts, along with other alleged errors, in a petition for writ of habeas corpus. (In re Melson, B300469.) We address that writ in a separate order.

9. Evidence as to Melson's Location at the Time of The Shooting

Security video from a Food4Less at 1222 East Carson Street showed Melson in the store at about 5:00 p.m. He was wearing a gray hoodie and red hat. The store was close to Melson's girlfriend's house in the 3500 block of Farnham Avenue in Long Beach. Melson was at her home when he was arrested.

Cellphone records placed Melson in the vicinity of 106th Street and Firth Avenue at the time of the murder—from 7:11 p.m. to 9:35 p.m. They placed him in the vicinity of his girlfriend's house in Long Beach from 9:51 p.m. through the following morning.

D. Gang Evidence

Police officers identified Melson as a member of the Hacienda Village Bloods. Melson had various gang tattoos, including "Tank" on his back; "HACI," for Hacienda Village Bloods, on his neck; "HVB" and "Hacienda Village Bloods"; and "104" for 104th Street, which was inside the Hacienda Village Housing Project. Melson had a tattoo of two high-powered rifles and the words, "Usual Suspect." He also had a tattoo of a rat with a noose around its neck, hanging from a street sign at the corner of 105th Street and Compton Avenue. This signified that snitches would be killed.

Los Angeles Police Officer Francis Coughlin, a gang expert, testified that it was common for gang members to get tattoos related to the crimes they commit. Tattoos of firearms reflected commission of robberies and shootings. Gang members with tattoos of firearms "are more respected by the gang and are expected to do the violent lifting of the gang."

Officer Coughlin testified regarding the relationship between the Village Boys and the Hacienda Village Bloods. He also testified as to the factors which made the Hacienda Village Bloods a criminal street gang. Given a hypothetical situation mirroring the facts of this case, Officer Coughlin opined the crime was committed for the benefit of a criminal street gang.

PROCEDURAL BACKGROUND

Melson was charged by information with the murder of Navarrete (Pen. Code, § 187, subd. (a); count 1), willful, deliberate, and premeditated attempted murder of Sabino and Garibay (§§ 187, subd. (a), 664; counts 2 & 3), and shooting at an occupied motor vehicle (§ 246; count 4). As to these counts, the information alleged that Melson personally used and discharged a firearm, causing great bodily injury and death to Navarrete (§ 12022.53, subds. (b), (c) & (d)), and the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). The information also charged Melson with felony possession of a firearm by a felon with one prior conviction (§ 29800, subd. (a)(1); count 5), committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). Finally, the information alleged that Melson suffered a prior serious felony conviction for robbery in 2014 (§§ 667, subds. (a)(1), (b)-(j), 1170.12).

All unspecified statutory references are to the Penal Code.

Melson's first trial, before Judge Eleanor J. Hunter, ended in a hung jury, split nine to three in favor of conviction. Re-trial proceeded before Judge Sean D. Coen. Following that second trial, the jury found Melson guilty of second degree murder, two counts of willful, deliberate, and premeditated attempted murder, shooting at an occupied motor vehicle, and possession of a firearm by a felon. It found true the firearm and gang allegations.

Prior to sentencing, Melson filed a motion for new trial based on newly discovered evidence and insufficiency of the evidence to support the verdicts (§ 1181, subds. (6), (7) & (8)). Melson also filed a motion to strike his prior conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), based primarily on his youth at the time of the prior conviction; he was 20 years old when convicted.

At the sentencing hearing, the trial court found the prior conviction allegation to be true. It denied Melson's new trial motion and motion to strike his prior conviction.

The court sentenced Melson to 60 years to life for the murder, consisting of 15 years to life, doubled as a second strike to 30 years, plus 25 years to life for the firearm enhancement and five years for the prior conviction. The court imposed consecutive terms of 45 years to life for the two attempted murders, consisting of 15 years to life pursuant to section 186.22, subdivision (b)(5), plus 25 years to life for the firearm enhancement and five years for the prior conviction. The court stayed sentence for shooting at an occupied motor vehicle pursuant to section 654. It imposed a concurrent term of 15 years for possession of a firearm by a felon. The total term imposed was 150 years to life. In imposing sentence, the trial court indicated it was aware of its discretion to strike the firearm use enhancements but declined to do so.

Melson timely appealed.

DISCUSSION A. Instruction on the Kill Zone Theory of Attempted Murder

Melson contends that the trial court erred in instructing the jury on the kill zone theory of attempted murder pursuant to CALJIC No. 8.66.1, and the instruction was prejudicial. We agree the instruction was not warranted here. We find it was prejudicial as to count 2, the attempted murder of Sabino, only and reverse only that count.

1. The Instruction and Argument on the Kill Zone Theory

The trial court instructed the jury as to the kill zone theory of attempted murder using a modified version of CALJIC No. 8.66.1 as follows (the court's additions are underlined, and its deletions marked by strikethrough): "A person who primarily intends to kill one person, or persons, known as the primary target, may—at the same time—attempt to kill all persons—in the immediate vicinity of the primary target. This area is known as the zone of fatal harm. A zone of fatal harm is created when [A] perpetrator specifically intending to kill the primary target by lethal means may also attempts to kill everyone present in the zone of fatal harm in the immediate vicinity of the primary target. If the perpetrator has this specific intent, and employs the means sufficient to kill the primary target and all others in the zone of fatal harm in the immediate vicinity, the perpetrator is guilty of the crimes of attempted murder of the other persons in the zone of fatal harm in the immediate vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a zone of fatal harm the immediate vicinity is an issue to be decided by you."

The prosecutor argued as to the attempted murder charges: "Remember that part where Little Bugsy, Raul Garibay, said that after he finished shooting [Navarrete], he then pointed the gun at him, pointed the gun at his chest. The gun didn't fire. It was four clicks. That's a classic example of attempted murder. . . .

"Now the facts didn't support that he pointed the gun at [Sabino]. It didn't support that, okay? But there's—I'm just going [to] go through this real quick. There's what we call 'attempted murder kill zone.' And basically how this theory works is that anyone who is in the area of where these bullets are flying is considered in the kill zone. So each person, [Sabino and Garibay,] because they were in this particular kill zone, this is considered attempted murder. The defendant not only intended to kill . . . everyone within this kill zone, and that pans out with the evidence that was presented by the criminalist that showed that the bullet traveled through the car and exited the other side of the passenger seat.

"This is just a[n] example of the kill zone. He was trying to kill [Navarrete and Garibay], but bullets hit all over the car. That's the kill zone theory. That's attempted murder on Raul Garibay and Pedro Sabino."

Defense counsel did not address the kill zone theory. He focused solely on the sufficiency of the evidence identifying Melson as the shooter.

2. Applicable Law

"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.' [Citation.] When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be 'transferred' from one attempted murder victim to another under the transferred intent doctrine. [Citation.]" (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).)

The kill zone theory, first approved by our Supreme Court in People v. Bland (2002) 28 Cal.4th 313, yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant's "primary target." In Canizales, the Supreme Court clarified "that a jury may convict a defendant under the kill zone theory only when the jury finds that: (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. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm." (Canizales, supra, 7 Cal.5th at pp. 596-597.)

Canizales noted that, "[a]s past cases reveal, there is a substantial potential that the kill zone theory may be improperly applied, for instance, where a defendant acts with the intent to kill a primary target but with only conscious disregard of the risk that others may be seriously injured or killed." (Canizales, supra, 7 Cal.5th at p. 597.) For this reason, the court cautioned "that trial courts must be extremely careful in determining when to permit the jury to rely upon the kill zone theory" (ibid.), and "there will be relatively few cases in which the theory will be applicable and an instruction appropriate" (id. at p. 608).

Where the trial court erroneously instructs the jury on a kill zone theory, Canizales instructs that we apply the "prejudice inquiry appli[cable] in cases 'in which "a particular theory of conviction . . . is contrary to law," or, phrased slightly differently, cases involving a "legally inadequate theory" . . . .' [Citation.] In determining whether a legally inadequate theory was conveyed to the jury here, we must ask whether there is a ' "reasonable likelihood" ' that the jury understood the kill zone theory in a legally impermissible manner. [Citations.] In doing so, we consider the instructions provided to the jury and counsel's argument to the jury. [Citations.]" (Canizales, supra, 7 Cal.5th at p. 613.)

We apply the Chapman standard in determining whether the error was prejudicial. Under that standard, error is prejudicial unless " 'it is clear beyond a reasonable doubt that a reasonable jury would have rendered the same verdict absent the error.' " (Canizales, supra, 7 Cal.5th at p. 615.)

Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. The Canizales court left open the question whether a more stringent standard of prejudice might apply, finding that even under Chapman, the error was prejudicial.

3. The Trial Court Erred in Giving the Kill Zone Instruction in this Case

Although one can certainly infer that the use of force by Melson endangered Sabino, endangerment "is insufficient to support a kill zone instruction." (Canizales, supra, 7 Cal.5th at p. 608.) " '[I]n a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located.' " (Id. at p. 607, quoting People v. Medina (2019) 33 Cal.App.5th 146, 156.) Thus, a kill zone instruction was appropriate only if there was evidence of a primary target (Canizales, supra, at p. 609), and "there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm" around that primary target, and not merely endanger or harm them (id. at p. 608).

The requirements set forth in Canizales were not met here. There was a primary target—Navarette. However, the prosecutor acknowledged that Melson only intended to kill Navarrete and Garibay, not everyone in the zone of fatal harm, and there was no evidence that Melson pointed a gun at Sabino. Instead, the prosecutor argued the attempted murder count as to Sabino was based on the fact he was "in the area of where these bullets are flying." Additionally, the court's instruction stated Melson's specific intent to kill the primary target through lethal means meant he also attempted to kill everyone in the immediate vicinity of the primary target, which was not a correct statement of the kill zone theory of liability. Together, the court's instruction and the prosecutor's argument conveyed a legally inadequate theory to the jury, by telling it "that under the kill zone theory, when a defendant is 'shooting at someone and people are within the zone that they can get killed, then [the defendant] is responsible for attempted murder as to the people who are within the zone of fire.' " (Canizales, supra, 7 Cal.5th at p. 613.)

This error was prejudicial. In light of the prosecutor's acknowledgement that Melson did not aim at Sabino, but was instead in the vicinity of where bullets were flying, it is not clear beyond a reasonable doubt that a reasonable jury would have found Melson guilty of the attempted murder of Sabino absent the erroneous kill zone instruction. (Canizales, supra, 7 Cal.5th at p. 615.) Hence, Melson's attempted murder conviction on count 2 must be reversed.

We reach a different conclusion as to the attempted murder of Garibay. Sabino saw Melson aim into the backseat and pull the trigger four times. Garibay also stated that Melson shot at Navarrete and then shot at him in the backseat but the gun was out of bullets. The prosecutor argued to the jury that this was "a classic example of attempted murder," which it was, and did not argue the kill zone theory as to Garibay. Under the circumstances, " 'it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.' " (Canizales, supra, 7 Cal.5th at p. 615.)

B. New Trial Motion

Melson contends the trial court erred in denying his motion for new trial. That motion was based on two grounds: newly discovered evidence, and insufficiency of the evidence. We discuss each ground in turn.

1. Standard of Review

"The court has broad discretion in ruling on a new trial motion, and the court's ruling will not be overturned absent a clear and unmistakable abuse of that discretion. [Citation.] The court abuses its discretion, however, where it misconceives its duty, applies an incorrect legal standard, or fails to independently consider the weight of the evidence. [Citation.]" (People v. Carter (2014) 227 Cal.App.4th 322, 328; accord, People v. Fuiava (2012) 53 Cal.4th 622, 729-730.)

2. Newly Discovered Evidence

Pursuant to section 1181, subdivision 8, a motion for a new trial may be granted "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given . . . ."

As the Supreme Court reiterated in People v. O'Malley (2016) 62 Cal.4th 944, " ' "To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial." [Citation.] "[T]he trial court has broad discretion in ruling on a new trial motion . . . ," and its "ruling will be disturbed only for clear abuse of that discretion." [Citation.] In addition, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence." [Citation.]' [Citation.]

" ' "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' " ' [Citation.]" (People v. O'Malley, supra, 62 Cal.4th at pp. 1016-1017.)

In support of his new trial motion, Melson submitted declarations by his trial counsel, Sharpe, and Artica Rene June. Sharpe stated that "after completion of Mr. Melson's trial, I was provided a number of potential witness[es] from the family of Mr. Melson." Sharpe then hired an investigator, who contacted June and had her sign a declaration.

In her declaration, June stated that she was coming home when she saw two men running on 105th Street. They were tall African-American men dressed all in black. People were saying the men were "Pacman" and "Chopper." June guessed they were the ones who did the shooting. No one talked to June previously about what she saw. However, someone told her Melson was in jail for the shooting, and June did not believe he should be punished for something he did not do.

The trial court noted that the information provided in the declaration was "quite limited in regards to description, et cetera." While the defense was relying on the description of two tall African-American men dressed in black, the court noted that the witnesses at trial gave varying descriptions of the shooters, and the jury was aware of inconsistencies in the descriptions. The court noted that Melson was identified by someone who knew him and by statements he made while in custody. The court concluded that the information "laid before the court in this affidavit, it's something that the court is not in belief that a different result would have occurred if this evidence had been presented." It thus found Melson was not entitled to a new trial based on newly discovered evidence.

Melson contends the trial court applied the wrong standard in denying his new trial motion. Instead of asking whether "a different result would have occurred if this evidence had been presented," Melson argues "the proper standard only requires a reasonable probability of a better result and does not consider any particular trier of fact's subjective assessment of the evidence presented."

In support of this proposition, Melson relies on People v. Soojian (2010) 190 Cal.App.4th 491 (Soojian). Soojian addressed the meaning of the phrase "a different result." Both defense counsel and the prosecutor agreed the phrase meant that "the trial court need conclude only that the new evidence would convince a single juror to change his or her vote, resulting in a hung jury." (Id. at p. 518.) The trial court, however, concluded that the defendant "was required to establish that the new evidence would have resulted in a different verdict, i.e., the new evidence made it reasonably probable that an objective jury would have found [the defendant] not guilty of the charged crimes." (Ibid.)

In examining the case law on the matter, the court analogized to the standard set forth in People v. Watson (1956) 46 Cal.2d 818 "for determining whether an error in the trial court resulted in a miscarriage of justice permitting a reversal of the judgment as required by the California Constitution, article VI, section 13. The Supreme Court concluded that a miscarriage of justice occurred when 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (Watson, [supra,] at p. 836.)" (Soojian, supra, 190 Cal.App.4th at p. 519.) A reasonable probability in this context means " 'merely a reasonable chance, more than an abstract possibility.' " (Ibid.; accord, Watson, supra, at p. 837.)

The Soojian court could "discern no significant distinction between the phrases 'a different result' and 'a result more favorable.' Both standards anticipate that the party seeking relief will be in a different, and necessarily a better, position if relief is granted. Both phrases establish a standard the party seeking relief must overcome to have the result in the trial reversed. And it is undeniable that a more favorable result also will be a different result." (Soojian, supra, 190 Cal.App.4th at pp. 519-520.)

We note that Soojian referred to both the defendant's "burden of establishing that a different result is probable" and the "determin[ation] if an error that occurred at trial would result in a more favorable or different result in a retrial." (Soojian, supra, 190 Cal.App.4th at p. 521, italics added.) The Supreme Court, too, has used both phrases. (Compare In re Masters (2019) 7 Cal.5th 1054, 1082 [trial court must determine " ' "whether introduction of the evidence in a new trial would render a different result reasonably probable" ' "] with People v. O'Malley, supra, 62 Cal.4th at p. 1016 [the evidence must " ' " ' "be such as to render a different result probable on a retrial" ' " ' "].)

The trial court here stated that it did not believe "that a different result would have occurred if this evidence had been presented." (Italics added.) We agree with the People that this shorthand statement of the statutory standard does not mean that the trial court misunderstood the law or applied an incorrect standard, and no reasonable interpretation of the record demonstrates an abuse of discretion.

As the trial court noted, the witnesses gave varying descriptions of the shooters and what they were wearing. Further, the trial court's description of June's declaration as "quite limited" is a generous one. The declaration does not provide a date and time when June made her observation. She described the two men she saw as "tall," with no specification as to what she considered to be tall. She stated that she saw two men running to 105th Street, without giving a cross street or stating where they were running from. Finally, she provided no information linking the two men to the shooting at issue here, stating only that she guessed they were the ones who did something. The rudimentary information provided in June's declaration was not " ' " ' "such as to render a different result probable on a retrial." ' " ' " (People v. O'Malley, supra, 62 Cal.4th at p. 1016.) Accordingly, we find no abuse of discretion in the trial court's denial of Melson's motion for new trial based on newly discovered evidence. (Ibid.)

2. Insufficiency of the Evidence

Citing section 1181, subdivision 6, Melson also argued he was entitled to a new trial based on the contradictory witness statements describing the perpetrators, combined with June's statements, being insufficient to sustain a verdict of guilty beyond a reasonable doubt. The court noted that these arguments mirrored the ones presented in Melson's motion for a judgment of acquittal under section 1118.1. It then stated that in its belief there was sufficient evidence to sustain the conviction, "with the identification of an individual that knew Mr. Melson as well as the statements played for the jury in regard to what Mr. Melson said in custody. And this jury was able to hear all that information. So, again, I do believe there's sufficient evidence presented to sustain a conviction upon appeal. And, of course, then the cellphone information as well that was put forth. With that information, the court [stated it was denying Melson's] motion for a new trial in this matter."

Melson asserts that the trial court abused its discretion by applying the wrong legal standard. As explained in Porter v. Superior Court (2009) 47 Cal.4th 125, "In ruling on [a section] 1118.1 motion for judgment of acquittal, the court evaluates the evidence in the light most favorable to the prosecution. If there is any substantial evidence, including all inferences reasonably drawn from the evidence, to support the elements of the offense, the court must deny the motion. [Citations.] In considering this legal question, 'a court does not " 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.] This test is the same as that used by appellate courts in deciding whether evidence is legally sufficient to sustain a verdict. [Citations.]" (Id. at p. 132.)

By contrast, on a motion for new trial under section 1181, subdivision 6, "[t]he court extends no evidentiary deference . . . . Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to [the] . . . evidence.' [Citations.] In doing so, the judge acts as a 13th juror who is a 'holdout' for acquittal." (Porter v. Superior Court, supra, 47 Cal.4th at p. 133.)

Melson argues the court misunderstood its duty to independently weigh the evidence. We disagree. There is a strong presumption that a trial court properly exercised its discretion in ruling on a new trial motion. (People v. Davis (1995) 10 Cal.4th 463, 524 (Davis).) Looking at the record as a whole, we see no indication the court misunderstood the governing standard. It is clear the court did not regard itself as bound by any of the jury's findings. Nor did it state it was construing all inferences in the prosecution's favor. Instead, it spoke of its belief about the import of the facts presented.

People v. Watts (2018) 22 Cal.App.5th 102, on which Melson relies, does not dictate otherwise. There, we observed that "[a] review of the motion hearing transcript reveals that the court repeatedly informed [the defendant] it could not reweigh the evidence and that its only concern was whether the prosecution had presented sufficient evidence to present the matter to the jury." (Id. at p. 113.) Here, in contrast, the court referred to its own beliefs about the evidence adduced at trial.

While Melson claims the court's reference to "sufficient evidence" demonstrates unwarranted deference to the verdict, Davis rejected a nearly identical argument. In Davis, our Supreme Court held that a trial court's statement that it believed there was sufficient evidence to support the verdict was not sufficient to show the court applied an improper standard of review to a section 1181, subdivision 6 motion. (Davis, supra, 10 Cal.4th at pp. 523-524.) As the trial court did not misunderstand the applicable test, it did not abuse its discretion when acting as a 13th juror in finding the evidence sufficient to support guilt.

C. Remand for Resentencing

Melson finally contends we should remand for resentencing because the trial court mistakenly believed he would be eligible for a youthful offender parole hearing in 25 years (§ 3051), and to enable the court to exercise its newly-granted discretion to strike his five-year serious felony conviction enhancements under section 667, subdivision (a)(1). The People agree with the latter proposition.

1. Prior Serious Felony Conviction Enhancement

Section 1385 provides the trial court with discretion to strike an enhancement in the furtherance of justice. At the time of sentencing, former subdivision (b) of that section provided: "This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." Senate Bill No. 1393 deleted former subdivision (b). (Stats. 2018, ch. 1013, § 2.)

Senate Bill No. 1393 applies retroactively here because the judgment in this case is not yet final. (People v. Garcia (2018) 28 Cal.App.5th 961, 973; see People v. Brown (2012) 54 Cal.4th 314, 319-324.) The parties agree, and we concur, that the matter must be remanded to permit the court to exercise its discretion to determine whether to strike any of the remaining section 667, subdivision (a)(1) enhancements.

2. Mistaken Belief as to Eligibility for a Youthful Offender Parole Hearing

Melson filed a Romero motion, seeking to strike his 2014 robbery conviction, which occurred when Melson was 20 years old. The motion sought to portray Melson as "a mild-mannered young man with a history of bad association and choices," a "misguided but not a violent person." Melson sought to minimize his participation in the crime, stating, "On January 13, 2018, two men approached the vehicle occupied by the three victims and opened fire after a brief conversation. [Melson] was later identified as one of the two men . . . . A firearm was discharged and Samuel Navarrete was killed."

In denying the motion, the trial court observed, "In this matter, it doesn't appear that Mr. Melson falls outside the spirit of the three-strike[s] law because of a couple of things. One, because of how recent his prior conviction was. Two, because of the age of that prior conviction between that and the current offense, there was not a life that was led of lawfulness. In fact, it was lawlessness. . . . There were convictions prior to that. So there was no break in lawlessness. So because of that, the court is going to deny the motion to strike the prior conviction."

The court then asked if counsel wanted to be heard further on the matter. Defense counsel stated, "I would just request that the court shows some leniency based on Mr. Melson's age when the incident happened based on [Senate Bill No.] 261, the youthful offender act, show some leniency in that regard."

Senate Bill No. 261 amended section 3051 (Stats. 2015, ch. 471, § 1), which provides a youth offender parole hearing after 25 years for a defendant who received a term of 25 years to life and who was 25 years old or younger at the time of the commission of the offense. (§ 3051, subd. (b)(3).) It does not apply to defendants sentenced under the three strikes law. (Id., subd. (h).)

The court responded, "And, again, just to reiterate, what that, in essence, states is that regardless of what the court does here, the defendant would have a parole hearing in 25 years. So that's [section] 3051." The prosecutor then interjected that "the [section] 3051 new law, it's fairly recent. I'm not sure if Mr. Melson qualifies for that because he has the strike. So . . . I'm not absolutely sure on that, but I just want to just make sure that's on the record. I think because he has a strike, he doesn't qualify for that." The trial court responded, "All right."

After sentencing Melson, the court added, "as a precautionary matter, I understand we've had some discussions about [section] 3051 in this matter. So what I will state is, if you wish to at this time say anything for the record or lodge anything with the record in regards to youthful offender mitigation evidence, you can do that at this time or that could simply be done at the time of parole, that period of parole does come within 25 years."

The trial court is required to give a youthful offender an "opportunity to make a record of information relevant to his eventual youth offender parole hearing." (People v. Franklin (2016) 63 Cal.4th 261, 284.)

Melson claims that the trial court's "denial of the Romero motion and the decision to impose a sentence of 150 years to life were made while under the mistaken impression that, regardless of his strike, Melson would be eligible for a [y]outhful [o]ffender parole hearing in 25 years." Because the court misunderstood its sentencing discretion, the matter must be remanded for resentencing. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

The record does not support Melson's claim. First, the trial court denied Melson's Romero motion before Melson's counsel brought up the issue of a youth offender parole hearing. Second, the trial court never stated that its sentencing decisions were based on Melson being able to receive a youth offender parole hearing after 25 years. It acknowledged the provisions of section 3051 after defense counsel raised the issue; it also acknowledged the prosecutor's statement that section 3051 did not apply here, because Melson was sentenced under the three strikes law. It allowed Melson to make a record "as a precautionary matter" only. In the absence of a showing that the trial court mistakenly relied on section 3051 in sentencing Melson, a remand for resentencing is unnecessary. (See, e.g., People v. Alexander (2010) 49 Cal.4th 846, 937; People v. Rogers (2006) 39 Cal.4th 826, 910.)

DISPOSITION

Melson's conviction on count 2 and its associated firearm, gang, and prior conviction enhancements are reversed. The matter is further remanded for the trial court to consider whether to exercise its discretion under section 1385 whether to strike the remaining section 667, subdivision (a)(1) enhancements. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED

WEINGART, J. We concur:

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------

ROTHSCHILD, P. J.

JOHNSON, J.