In re In re Dupree Antoine Glass On Habeas Corpus

• Decision Date: 16 June 2020
• Docket Number: B264402,B303007
• Citation: 50 Cal.App.5th 754,264 Cal.Rptr.3d 401
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Juan Marshall RAYFORD on Habeas Corpus. In re Dupree Antoine Glass on Habeas Corpus.

50 Cal.App.5th 754

264 Cal.Rptr.3d 401

IN RE Juan Marshall RAYFORD on Habeas Corpus. In re Dupree Antoine Glass on Habeas Corpus.

B264402

B303007

Court of Appeal, Second District, Division 7, California.

Filed June 16, 2020

Law Offices of Annee Della Donna and Annee Della Donna, Laguna Beach, for Petitioners.

Xavier Becerra, Attorney General, Sacramento, Lance E. Winters, Chief Assistant Attorney General, Los Angeles, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Noah P. Hill, Deputy Attorneys General, Los Angeles, for Respondent.

FEUER, J.

A jury convicted codefendants Juan Marshall Rayford and Dupree Antoine Glass of 11 counts of attempted willful, deliberate, and premeditated murder and one count of shooting at an inhabited dwelling based on their participation in a 2004 shooting at the home of Sheila Lair. On direct appeal, we affirmed Rayford's and Glass's convictions but vacated the gang and firearm enhancements. ( People v. Rayford (July 18, 2006, B179017) 2006 WL 1990962 [nonpub. opn.] ( Rayford I ).)

On May 29, 2015 Rayford filed a petition for writ of habeas corpus, in part arguing the jury was improperly instructed on the "kill zone" theory of concurrent specific intent to prove the 11 counts of attempted murder. After we denied the petition, the California Supreme Court granted review but deferred action pending consideration of the kill zone theory in People v. Canizales (2019) 7 Cal.5th 591, 597, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ). (In re Rayford (Nov. 24, 2015, S229536).) The Supreme Court likewise deferred action on Glass's March 9, 2017 petition for writ of habeas corpus. (In re Glass (Sept. 18, 2019, S240520).)

On June 24, 2019 the Supreme Court held in Canizales 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." ( Canizales, supra , 7 Cal.5th at pp. 596-597, 248 Cal.Rptr.3d 370, 442 P.3d 686.)

On September 18, 2019 the Supreme Court transferred Rayford's case to this court with directions to vacate our prior order denying the petition for writ of habeas corpus and "to reconsider the petition in light of [ Canizales ]." (In re Rayford, supra , S229536.) Also on September 18, 2019 the Supreme Court denied Glass's petition for writ of habeas corpus "without prejudice to filing the petition in the Court of Appeal, Second Appellate District, for consideration of our opinion in [ Canizales ]." (In re Glass, supra , S240520.) Glass filed a petition for writ of habeas corpus in this court on December 13, 2019. On December 18, 2019 we issued an order to show cause why relief should not be granted.

We conclude Canizales applies retroactively to Rayford's and Glass's convictions. Further, this is not one of the "relatively few cases in which the [kill zone] theory will be applicable and an instruction appropriate." ( Canizales, supra , 7 Cal.5th at p. 608, 248 Cal.Rptr.3d 370, 442 P.3d 686.) It was prejudicial error for the trial court to instruct the jury on the kill zone theory, and we now grant the petitions.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Information

In 2004 an information charged Rayford and Glass with 11 counts of attempted willful, deliberate, and premeditated murder ( Pen. Code, §§ 187, subd. (a), 664 )¹ and one count of shooting at an inhabited dwelling (§ 246). Each attempted murder count named a single victim: Kimberly Lair (count 1), Sheila Lair (count 2), Darrel Edward² (count 3), Donisha Williams (count 4), Jasmin Thompson (count 5), Shadonna Williams (count 6), Terry Watson (count 7), Ebony Howard (count 8), Jerterry Burns (count 9), Donte Burns (count 10), and Jermaine Cooper (count 11).³ As to all counts, the information alleged Rayford and Glass committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)), a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), and a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)).⁴

B. The Evidence at Trial⁵

1. The People's case

On the night of January 2, 2004, 18-year-old Rayford and 17-year-old Glass were at a party. There they saw 15-year-old Donisha with her adult sister Shadonna and 17-year-old cousin Perry. Donisha, Shadonna, and their sister Shontel Williams lived with their mother, Sheila. Glass had known Donisha and her family for several years and had eaten many meals at the family's house in the past year. Sheila described Glass as "a part of our family." Glass's sister went to school with one of Sheila's daughters; Rayford went to school with another. Rayford and Glass sometimes visited Sheila's house together. Glass and Perry were also friends.

During the party Glass and Perry began to argue. Glass gathered some people, including Rayford, to confront Perry outside. Donisha, Shadonna, and Perry got in a car to leave. Someone tried to reach into the car and grab Perry. Rayford was yelling. Shadonna drove away. Shadonna and Donisha dropped Perry off at their grandmother's house and returned to their own house sometime after 1:00 in the morning.

Shortly thereafter Glass called Donisha on her mobile phone walkie-talkie. Glass and Donisha frequently communicated in this manner. Glass asked where Perry was, explaining he wanted to fight him. Donisha told Glass that Perry was at her grandmother's house. Glass repeated his question several times, and Donisha felt Glass thought she was lying. Donisha invited Glass to her house to see for himself Perry was not there.

Ten minutes later, at around 1:30 a.m., Glass called Donisha and told her he was at her house. Donisha and Shadonna exited their house as Glass's car and two other cars pulled up. Glass, Rayford, and many other young men exited the cars. Glass directed Donisha to tell Perry "to come outside and catch a fade," meaning to fight Glass. But Perry was not in the house. Donisha and Shadonna went back inside to wake up their mother. Also in the house were Shontel; Sheila's sister Kimberly; Kimberly's boyfriend; and Sheila's nieces and nephews Ebony, Jasmin, Jermaine, Jeterry,⁶ Kevante, and Donte; as well as Sheila's two neighbors, Terry and Darrel.⁷ The family members and neighbors ranged in age from six to 21 years old.

Sheila exited the front door, and "[m]ore than a few" of the people in the house followed her outside, including Donisha, Terry, and Darrel. As she walked outside, Sheila saw a large group of young men standing in the street and on her lawn.⁸ Sheila's house was on a corner lot and had a south-facing front door. She stood in "the middle of the grass" in her front yard. Sheila recognized Glass, Rayford, and "Fat Man" standing on the grass. Fat Man stood to her left (on the east side of the house), while Glass stood in front of her, and Rayford stood to her right (to the west) at the edge of the yard near a tree.

Glass told Sheila "to send [Perry] outside." Sheila told him Perry was not there and there would be no fight. As Glass approached Sheila, Sheila told "the kids to go back in the house." While Sheila spoke with Glass, a man identified as De'Antwan and another man ran behind Sheila and struck Terry. Sheila attempted to corral her family and neighbors back inside by "walking backwards with [her] arms out pushing all the kids to go back in the house."

From an area to Sheila's left, where Fat Man was standing, gunshots were fired. Sheila heard the bullets hit the house. Then Glass started shooting "directly towards the house" from his position in front of Sheila. At this point Glass was standing about 33 feet from Sheila, on the grass near the sidewalk. Sheila saw a shot fired from where Glass was standing toward the first story front window. Sheila also saw a flash from where Rayford stood to Sheila's right. She did not see Rayford holding a gun but believed he fired more than one shot "up in the air," aiming above the roof of the garage. Sheila "started pushing" those gathered near the front door into the house, backing up to the concrete surface near her front door. Some of those gathered ran into the house, others dropped to the ground and tried to crawl to the house. Shots "came towards" Sheila and struck the wall near her, but they did not hit her. But Darrel was struck in the leg with a bullet.

Donisha testified Rayford fired the first shot "straight up" in the air. Glass fired into the front window. No one was standing in front of the window, but one of Donisha's cousins was looking out the window.⁹ Donisha could not tell how many of the group near the front door were able to get back inside during the gunfire. Inside the house, Sheila's sister Kimberly was lying down in the second floor west bedroom when she heard five or six gunshots. As she stood, a bullet grazed her back and landed on her bed. Kimberly ran downstairs, and Sheila told her Glass had "shot up" the house. About 45 minutes after the shooting, Kimberly called Glass and asked why he had fired at their house, explaining she was injured. Glass responded, "That's what you bitches get."

Los Angeles County Sheriff's Deputy Ed Anderson investigated the crime scene and found evidence eight bullets struck the house. Four were fired from east to west, and four were fired from south to north. The bullet that grazed Kimberly's back traveled east to west, striking "the fascia board above the front window," then traveled through the second floor east bedroom where it was "deflected" by the bedroom's bunk bed, penetrating seven...