People v. Mumin

15 Cal.5th 176

534 P.3d 1

312 Cal.Rptr.3d 255

The PEOPLE, Plaintiff and Respondent,

v.Ahmed MUMIN, Defendant and Appellant.

S271049

Supreme Court of California.

August 17, 2023

Raymond M. DiGuiseppe, under appointment by the Supreme Court, for Defendant and Appellant.

Annee Della Donna, Laguna Beach, for Innocence Rights of Orange County as Amicus Curiae on behalf of Defendant and Appellant.

Mary K. McComb, State Public Defender, Sacramento, and Elizabeth H. Eng, Deputy State Public Defender, for the Office of the State Public Defender as Amicus Curiae on behalf of Defendant and Appellant.

Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Steve Oetting, Arlene A. Sevidal, Collette Cavalier and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Corrigan, J.

Here we resolve a conflict among the Courts of Appeal as to the proper standard of review when a defendant challenges a court's decision to instruct on a concurrent intent, or "kill zone," theory as applied to an allegation of attempted murder. (See People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ).) We conclude that, although the Court of Appeal applied the proper standard, it erroneously concluded that sufficient evidence supported the giving of a concurrent intent instruction. We reverse the Court of Appeal judgment to the extent it affirmed the one attempted murder conviction that was based on that theory.

I. BACKGROUND

Early on April 16, 2015, defendant Ahmed Mumin robbed a San Diego convenience store and fatally shot customer Eric Schade. DNA testing of items recovered at the scene pointed to defendant as a suspect. The store clerk later identified him as the robber.

Two days later, defendant was at an apartment complex where he asked a relative for a ride to "[a]nywhere," saying the police were looking for him. Detectives, having discovered a connection between defendant and the complex, arrived and defendant ran when he saw them. Shortly thereafter, a burglary in progress was reported at the complex. A resident said defendant had a silver handgun, pushed on several windows, then hid a backpack and fled. Responding officers found a backpack hidden in nearby bushes. It contained defendant's identification, a phone, and some nine-millimeter ammunition.

An extensive search of the complex ensued. Five detectives and over a dozen uniformed officers wore tactical vests with a badge on the front and "Police" printed in large white letters. Investigators went to each apartment, loudly identified themselves as police, and directed residents to come outside. A police helicopter flew overhead to assist the search, which lasted approximately an hour. Detectives Jim Mackay and Luke Johnson approached a building with four adjacent doors leading to a community room and facing the area where defendant's backpack was recovered. At trial, witnesses referred to the doors numerically, with Door 1 being farthest to the right. Believing the doors led to small rooms or storage units, Mackay went to Door 1 to see if it was locked. Detective Luke Johnson provided cover. He stood to the left of Door 1 generally in line with Door 2, and back some distance from the plane of the doorways. As a result Johnson was positioned about 25 feet away from Door 1 and to the left of it. Johnson testified he placed himself in line with Door 2 to avoid standing in a "fatal funnel" near Door 1. He explained: "If someone is going to shoot you, they're going to shoot out the door that you opened. So you don't want to be standing in that area."

Mackay stood by the right hinges of Door 1 and reached across to operate its handle. As he opened the door slightly, defendant fired once through the opening and twice through the closed Door 2. Neither officer was hit. All three bullets struck near dumpsters across a parking lot from where defendant's backpack was found. In response, Mackay and Johnson took cover and returned fire. Johnson shot five times through Door 1 and Mackay fired three times at the same target.

The shooting stopped. Defendant, who had been shot, complied with orders to come out of the community room. Inside, a Sig Sauer nine-millimeter pistol holding seven rounds was recovered. Two additional magazines, containing a total of 21 rounds, were also taken into evidence. Ballistics testing confirmed the gun was that used to kill Schade and shoot at the detectives.

A criminalist testified about the various bullet holes and trajectories. All of the bullet holes found in Door 1 were made by shots fired from the outside. Two bullet holes in Door 2 were made by shots fired from inside the room. The third round recovered near the dumpsters likely went through the opening of Door 1 created when Mackay opened it. All three rounds defendant fired had hollow points, designed to mushroom on impact.

At trial, in connection with the convenience store crimes, defendant was convicted of first degree murder, second degree robbery, and burglary. Various firearm allegations, along with special circumstance allegations of murder committed during a robbery and burglary, were found true.¹ As to the apartment complex shooting, defendant was convicted of two counts of attempted, premeditated murder of a police officer, assault with a semiautomatic firearm, and assault on a police officer with a semiautomatic firearm. Attached enhancements were found true.² Defendant was sentenced to life without the possibility of parole for the murder of Schade, along with consecutive terms totaling 55 years to life plus 41 years and four months. Sentence on the remaining counts and allegations was stayed. The Court of Appeal modified the judgment to vacate two counts of assault with a semiautomatic firearm because they were lesser included offenses of assault on the officers with that weapon. The judgment was otherwise affirmed. ( People v. Mumin (2021) 68 Cal.App.5th 36, 62–63, 282 Cal.Rptr.3d 836 ( Mumin ).)

II. DISCUSSION

Defendant argues the trial court improperly instructed on the concurrent intent theory of liability for attempted murder of both detectives. Before we turn to the proper standard for reviewing those claims, we summarize the relevant substantive law.

A. Concurrent Intent and the Law of Attempted Murder

"In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence." ( Pen. Code, § 20.)³ The mental state, or mens rea, that must accompany each crime is an element of the offense. The mental state required for the crime of murder is the existence of malice, which may be either express or implied. (See Pen. Code, §§ 187, subd. (a) ; 188.) Malice is express when "there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." ( Pen. Code, § 188, subd. (a)(1).) It is implied when "a defendant act[s] with conscious disregard of the danger to human life." ( People v. Knoller (2007) 41 Cal.4th 139, 156, 59 Cal.Rptr.3d 157, 158 P.3d 731 ; see People v. Smith (2018) 4 Cal.5th 1134, 1165, 233 Cal.Rptr.3d 1, 417 P.3d 662 ; Pen. Code, § 188, subd. (a)(2).) Because malice may be implied, second degree murder does not require a specific intent to kill. To elevate that offense to murder in the first degree on a malice theory, the defendant must act with a specific intent to kill that is formed willfully, deliberately, and with premeditation. ( Pen. Code, § 189, subd. (a) ; see CALCRIM No. 521.)

Special rules apply when a person tries but fails to complete an offense. An attempt "consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." ( Pen. Code, § 21a.) In the context of attempted murder, People v. Bland (2002) 28 Cal.4th 313, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ( Bland ) observed: "The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice — a conscious disregard for life — suffices." ( Id . at p. 327, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) However, attempted murder requires a specific intent to kill.

Bland first examined the contours of the doctrine of transferred intent as it applied to a completed murder. Under the doctrine, if a defendant intended to kill A but inadvertently killed B, the intent to kill A is deemed to transfer to the killing of B, so that the defendant is guilty of B's murder. (See Bland, supra, 28 Cal.4th at pp. 320–321, 121 Cal.Rptr.2d 546, 48 P.3d 1107, citing People v. Scott (1996) 14 Cal.4th 544, 546, 59 Cal.Rptr.2d 178, 927 P.2d 288.) Bland then built on that principle to hold that, even when a defendant succeeds in killing his intended target, his intent to kill extends to any others he actually kills. (See Bland, at pp 321–326, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) Bland imposed a limit on its holding, however. While the intent to kill one target transfers to others actually killed, the doctrine will not extend that lethal intent to others who may be assaulted or injured but do not die. To be guilty of the attempted murder of a person who survives, the defendant must intend to kill that survivor. (See id . at pp. 326–328, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) It is essential to keep clear the distinction between the sufficiency of implied malice to support a murder conviction when the victim dies and the requirement of a specific intent to kill in order to support a charge of attempted murder when the victim survives.

As Bland explained: "Someone who in truth does not intend to kill a person is not guilty of that person's attempted murder even if the crime would have been murder — due to transferred intent — if the person were killed. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not...