In re Lisea

• Citation: 288 Cal.Rptr.3d 824,73 Cal.App.5th 1041
• Decision Date: 13 January 2022
• Docket Number: C093386
• Parties: IN RE Eduardo LISEA on Habeas Corpus.
• Court: California Court of Appeals

73 Cal.App.5th 1041

288 Cal.Rptr.3d 824

IN RE Eduardo LISEA on Habeas Corpus.

C093386

Court of Appeal, Third District, California.

Filed January 13, 2022

As Modified January 28, 2022

Robert J. Beles, Oakland, Retained Counsel for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Clara M. Levers, Deputy Attorneys General, for Respondent.

BLEASE, Acting P. J.

The petition for writ of habeas corpus filed in this court by petitioner Eduardo Lisea presents an unusual application of the Supreme Court decision addressing the kill zone instruction for attempted murder in CALCRIM No. 600, People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ).

This case stems from a confrontation between petitioner's gang and a rival gang in which an innocent bystander was shot. Petitioner, the driver of the vehicle from which his fellow gang members fired several shots, was convicted of attempted murder, assault with a firearm, criminal street gang participation ( Pen. Code,¹ §§ 664, 187, subd. (a), 245, subd. (a)(2), 186.22, subd. (a) ), gang and firearm enhancements ( §§ 186.22, subd. (b)(1), 12022.53, subd. (d), 12022, subd. (a)(1), 12022.53, subds. (d) (e) (1) ) and was sentenced to 32 years to life.² ( Lisea, supra , 213 Cal.App.4th 408, 410, 152 Cal.Rptr.3d 557.) The primary prosecution theory was that petitioner aided and abetted these offenses, which were the natural and probable consequence of disturbing the peace or simple assault. ( Ibid. )

We affirmed the judgment on appeal, finding in the published part of our opinion that a person convicted as an aider and abettor is a "principal" for the purposes of section 12022.53, subdivision (e), while rejecting his remaining contentions in the unpublished part of our opinion. ( Lisea, supra , 213 Cal.App.4th at p. 410, 152 Cal.Rptr.3d 557.)

On July 7, 2014, petitioner filed a petition for writ of habeas corpus in San Joaquin County Superior Court, which was denied.

On January 29, 2015, petitioner filed a petition for writ of habeas corpus with this court, which was subsequently denied. (C078310, order Mar. 26, 2015) The Supreme Court granted review and subsequently remanded the case to this court with directions to vacate our decision and reconsider the matter in light of Canizales . (C078310, order Sept. 18, 2019) On remand, this court vacated the denial (C078310, order Dec. 2, 2019) and issued an order to show cause returnable to the superior court. (C078310, order Dec. 10, 2019)

The superior court denied the petition for writ of habeas corpus in a written ruling on March 20, 2020.

Defendant then filed a petition for writ of habeas corpus with this court on January 21, 2021. He asserts: (1) there was insufficient evidence to give a kill zone instruction, a prejudicial error requiring reversal of his attempted murder conviction; (2) allowing him to be liable for the section 12022.53 enhancement as a principal violated his due process right to adequate notice; (3) the failure to instruct the jury on attempted involuntary manslaughter violated his due process rights; (4) cumulative error warrants reversal; and (5) appellate counsel was ineffective in failing to raise issues raised in the habeas petition.

The instruction here, which listed the attempted murder victim as the primary target, differs from the kill zone instruction in Canizales and other cases finding erroneous kill zone instructions. Canizales , which applies retroactively, is nonetheless applicable here. The instruction in this case, when combined with the prosecutor's arguments concerning it, presented the same problem that led to reversing the conviction in Canizales . The instruction allowed the jury to use circumstantial evidence to infer an intent to kill the victim when that same circumstantial evidence can support a reasonable inference of no intent to kill. As in Canizales , this error is prejudicial, warranting the reversal of the attempted murder conviction. Since there is substantial evidence to support an attempted murder conviction, petitioner may be retried for the crime. Finding the other contentions mooted or without merit, we shall vacate the attempted murder conviction, reverse the sentence, and remand for additional proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

We take the relevant background from our published opinion denying petitioner's appeal, and supplement where necessary from the appellate record.

1. The Crimes

"Independent Witness Accounts

"The confrontation actually began inside the store when defendant, a Sureño, made provocative comments and threw gang signs to two Norteños members, Jonathan Pimentel and Billy Ray Cook, amid Pimentel's display of colors (red).

"The confrontation continued into the parking lot, with Cook shouting at defendant and his companions. Both groups then pushed shopping carts at one another. A bystander, referring to defendant's group, yelled, "They have a gun." After this utterance, Pascual Pimentel (Jonathan's father and a member of the Norteños group) displayed a "Norte" tattoo to defendant and his crew.

"Two witnesses—N.D. (the victim Christopher Smith's then nine-year-old brother) and Justine Tango—saw Pascual run to a green SUV, grab a gun (Tango was not sure what was grabbed), and apparently run back to the altercation; shortly after this, these two witnesses heard three gunshots from positions of cover. Three other witnesses—Cynthia Stolt, Melissa Langford and Albert Harps—supported this account; these three witnesses, again, heard but did not see the firing. Another witness, Deyanira Andrade, saw Pascual run by her car and later heard three gunshots in rapid succession (although Andrade believed the shots came from the area in which defendant's group was congregating, she never actually saw a gun).

"Four other witnesses—then 12-year-old A.H., Jesus Lomeli, Jose Lomeli, and the victim himself, Christopher Smith—saw gunshots being fired toward the Norteños group at the front of the grocery store from defendant's blue Chevrolet pickup truck as it drove from the scene.

"Finally, Juan Trejo saw the two groups arguing in the parking lot, and heard one of the arguers say, "Let's get out of here .... They have a cuete [(Spanish for gun)] in the truck." Trejo and his companion, Carlos Chitiva, later saw a man, who was wearing a red shirt, running through the parking lot alongside a Chevrolet pickup holding one hand in his waistband (as if he had a gun) and cursing. They both heard several rapid gunshots, which came from the parking lot behind them (they were facing the store).

"Physical Evidence

"The hands of Cook, Pascual, and Jonathan (i.e., the Norteños members) tested positive for gunshot residue.

"Two possible bullet strikes were found on the exterior front wall of the grocery store. Nearby, a mushroomed bullet (consistent with having hit a wall) was found; this bullet matched a bullet fragment removed from victim Smith's head—both were fired from the same gun, a .32 caliber.

"About a month before the shooting, police officers found two bullet shell casings in defendant's Chevrolet pickup truck: a .32-caliber casing in the pickup bed, and a nine-millimeter casing in the driver's door pocket.

"Defendant's Statements and Gang Evidence

"In a police interview, defendant initially denied that anyone had fired a gun from his truck. Eventually, though, defendant said that as he pulled his truck out of the parking lot, two or three Norteños chased after the truck on foot and reached into their clothing as if they were concealing something.

After defendant turned right (apparently in exiting the lot), one of his passengers, "Cornejo," fired at the Norteños from the middle of the front seat. Cornejo fired more than two shots. Defendant grabbed Cornejo's arm, trying to stop the firing and calm Cornejo. When they returned to defendant's house, defendant confronted Cornejo about the shooting.

"In his trial testimony, defendant stated that he, Eric Espinoza, and Jose Pineda drove to the grocery store in his mother's 2006 Chevrolet/GMC truck. The altercation outside the store occurred, with the other group as the aggressor, pushing shopping carts and making threats. In response, Espinoza flashed a pocketknife to ward them off. Defendant, Espinoza and Pineda climbed into defendant's truck and drove off; they did notice, however, that Pascual was running after them holding a gun at his waist. Pascual was about 55 to 60 feet away. Defendant did not slow down, he was "panicked"; his friends were screaming to step on the gas because "[Pascual] has a gun," and he ducked down as he drove. Defendant did not hear any gunshots. Defendant, however, did not tell the police in his interview this specific information about Pascual, although he was asked if he had seen anyone with a gun or anyone shooting.

"Based on a variety of factors, two police gang experts opined that defendant was a Sureños gang member on the date of the offense, and they provided a context to this gang confrontation." ( Lisea, supra , 213 Cal.App.4th at pp. 411-412, 152 Cal.Rptr.3d 557.)

2. Kill Zone Instruction and Argument

Without objection, the trial court instructed the jury with CALCRIM No. 600, attempted murder. As relevant to this case, the jury was instructed as follows:

"To prove that the defendant is guilty of attempted murder, the People must prove that:

"1. The defendant took at least one direct but ineffective steps toward killing another person;

"AND

"2. The defendant intended to kill that person... [¶]

"A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of Christopher Smith, the People must prove that the defendant not only intended to kill Christopher Smith but also either intended to kill Jonathan Pimental, Pascual Pimental, John...