In re Milam

1

In re THOMAS JASON MILAM on Habeas Corpus.

B312401

California Court of Appeals, Second District, Eighth Division

August 4, 2022

NOT TO BE PUBLISHED

Petition for writ of habeas corpus from the judgment of the Superior Court of Los Angeles County, No. NA055388 Judith Levey Meyer, Judge. Petition granted.

Cuauhtemoc Ortega, Federal Public Defender, Michael T. Drake and Raj N. Shah, Deputy Federal Public Defenders, for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Thomas C. Hsieh, Dana M. Ali, Idan Ivri and Shira Seigle Markovich, Deputy Attorneys General for Respondent.

STRATTON, P. J.

Petitioner Thomas Milam, codefendant Theodore Kelly and two other men robbed a pawnshop in Long Beach. One of the shop's employees triggered a silent alarm and Long Beach Police Department (LBPD) personnel arrived as Milam fled alone through the back door of the pawnshop. LBPD Sergeant Eric Hooker and LBPD Officer Raymond Panek pursued Milam. Milam fired multiple shots at Officers Hooker and Panek but did not hit them. Milam was charged with, but not convicted of, the attempted murders of those officers. Later in the same pursuit, Milam fired a single shot in the general direction of LBPD Detectives Victor Thrash and Hector Gutierrez and was charged with two counts of attempted murder of these detectives.^[1] In closing argument, the prosecutor relied on the kill zone instruction to account for how Milam could have intended to kill two victims with one bullet. The jury convicted Milam of both attempted murder counts.

Broadly speaking, the kill zone theory provides that "a defendant may be convicted of the attempted murder of an individual who was not the defendant's primary target." (People Canizales (2019) 7 Cal.5th 591, 596 (Canizales).) After Milam was convicted the California Supreme Court limited the application of the kill zone theory to situations where "(1) the circumstances of the defendant's attack on a primary target . . . 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." (Id. at p. 607.)

The Supreme Court found CALCRIM No. 600, the then-standard jury instruction on the kill zone theory, deficient because it did not adequately define the term "kill zone" and did not adequately tell the jury to consider evidence "regarding the circumstances of defendants' attack when determining whether defendants 'intended to kill [the primary victim] by killing everyone in the kill zone.'" (Canizales, supra, 7 Cal.5th at p. 613.) The jury in this case was instructed on the kill zone theory with CALJIC No. 8.66.1, the predecessor kill zone instruction, which suffers from similar deficiencies.

After many procedural hurdles, including several proceedings in federal court, Milam filed a petition for writ of habeas corpus in Los Angeles County Superior Court, seeking reversal of the two attempted murder convictions due to the erroneous kill zone instruction and additional errors related to the kill zone theory. The superior court agreed the instruction was erroneous but concluded only one of the two attempted murder convictions had to be vacated as a result. The court found the evidence showed "Mr. Milam was shooting at Gutierrez, and the other officer [Thrash] was just around the corner, and that he would have been in the kill zone. But, clearly, Gutierrez was straight ahead in the line of sight." The court vacated the attempted murder conviction as to Thrash. This parallels the result in Canizales, where the Supreme Court upheld the attempted murder conviction as to the primary target but reversed it as to the second victim who was merely in the kill zone.

Milam then brought a petition for writ of habeas corpus in this court, seeking reversal of the conviction involving Gutierrez.

A. Milam Is Not Estopped from Challenging the Gutierrez Conviction.

Respondent contends in its informal response that Milam's counsel stated in the Superior Court that the relief he was seeking was either to pick one conviction and sustain it and vacate the other, or to vacate both and let the prosecutor decide whether to retry one of the counts. At the end of the hearing, the trial court sustained the conviction as to Gutierrez and vacated the conviction as to Thrash. Respondent contends that since Milam received the relief he was seeking, he should be estopped from seeking further relief.

The reporter's transcript reflects that Milam's counsel stated: "So like I said before, the remedy in that situation is: I'd prefer to pick one and then sustain it and then vacate the other one, or vacate both, and then allow the district attorney's office to decide whether it wants to retry one of the counts." In his informal reply, Milam's counsel states that he believes he said the "remedy isn't to pick one conviction and sustain it and then vacate the other one, but to vacate both." Counsel notes that the hearing took place via telephone and the transcript shows the court reporter had some difficulty transcribing his statements.

More significantly, the statement as transcribed refers to counsel's earlier statement ("like I said before"). Counsel began the hearing by noting that the district attorney's office was "conceding that one count should go away, and they're proposing that the court should choose." Counsel continued: "They're suggesting that it's for the-court to pick which one-which conviction should go away. My position is that there's prejudice on both counts because there was no primary target specified." Counsel continued: "So I think they both should be vacated, and then the DA should be left to decide whether it wants to retry one of them and decide which count it wants to retry."

Further, whether Milam's counsel was mistranscribed or he misspoke, the trial court clearly did not understand him as changing his position and agreeing to have only one conviction vacated. The trial court stated to counsel: "Mr. Drake, you clearly do your client a service with these arguments. However, my opinion differs from yours, Mr. Drake." The court then went on to explain that it was sustaining one conviction (Gutierrez) and vacating the other (Thrash). Further, at the end of the hearing, the court asked Milam's counsel if he wanted the court to add a transcript of the hearing for him. Counsel replied that he did, because "I might take it up on a writ." The court responded: "Right. That's why I'm asking."

Respondent does not argue that the People relied on Milam's counsel's alleged concession, perhaps because there is nothing in the record to support such a claim. The trial court ruled immediately after the alleged concession. As part of its ruling, the court indicated that it would dismiss count 4 (Thrash) unless it was "something that you want to try and retry?" The prosecutor responded: "I wasn't expecting that question, so no, at this point, we're conceding that there was an instructional error, and that count should not remain." This is entirely consistent with the People's earlier briefing in the matter, in which the People conceded the facts of this case did not warrant the kill zone instruction after Canizales, and also stated that "as in [People v. Perez (2010) 50 Cal.4th 222] and [People v. (2009) 46 Cal.4th 131 (Stone)] . . . firing a single shot at several people was one offense of attempted murder." There is nothing to suggest the prosecutor changed her position in reliance on counsel's supposed concession.

In its Return, respondent reincorporates the above claims, and adds that relief is not warranted because the superior court's decision to vacate the conviction for the attempted murder of Thrash "solved" the problem of two convictions based on a single shot. Respondent contends the jury necessarily found that Milam intended to kill at least one of the detectives, it would be inequitable to vacate the remaining conviction, and Milam should be estopped from seeking such relief. Milam is not estopped from claiming the remaining conviction is improper. That is the question this writ proceeding will decide.

B. The Kill Zone Instruction Was Deficient Because It Failed to Identify a Primary Victim.

In his petition, Milam alleges the kill zone instruction in this case suffered the same defects as the instruction used in Canizales, along with one additional defect. As in Canizales, the instruction in this case did not tell the jury that it could apply the kill zone theory only if it was the sole reasonable inference from the evidence, and it did not provide sufficient guidance on evaluating whether a kill zone existed (by listing factors such as the proximity of victims to each other). However, the instruction in this case also had another defect mentioned but not present in Canizales: the failure to identify a primary victim.

In its informal response, respondent argues the instruction was legally erroneous as to Thrash (because he was the kill zone victim and the kill zone theory did not apply), but only factually erroneous as to Gutierrez, "because the jury would not have applied the [kill zone] theory at all with respect to him." By this respondent simply means that the jury would not have found Gutierrez was the kill zone victim and so...