Filed 4/14/16

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ISMAEL CARDONA,

Defendant and Appellant.

 B261458

 (Los Angeles County

 Super. Ct. No. VA116734)

APPEAL from an order of the Superior Court of Los Angeles County. Robert J. 

Higa, Judge. Affirmed in part, reversed in part.

Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Rama R. 

Maline, Deputy Attorneys General, for Plaintiff and Respondent.

________________________________

 

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is 

certified for publication with the exception of part III of the discussion.
2

Appellant Ismael Cardona challenges his convictions for murder and attempted 

murder arising from an incident at a party during which he shot two people, killing one 

and wounding the other. Cardona contends that the trial court erred by giving the jury a 

“kill zone” instruction with respect to the attempted murder charge. He also contends

that the trial court erred with respect to the murder charge by instructing the jury 

regarding the limitations to the right of self-defense available to a defendant who was 

the initial aggressor in the confrontation with the victim. We agree with Cardona’s 

contention regarding the attempted murder charge, but disagree regarding the murder 

charge. Accordingly, we affirm the judgment in part and reverse in part.

FACTS AND PROCEEDINGS BELOW

Cardona attended a party in the backyard of a house in Whittier on the night of 

April 3, 2009. Three friends accompanied him to the party, all members of a street gang

known as MFT.

Paul Jauregui also attended the party accompanied by his friends. He brought 

with him a tank containing nitrous oxide, or “noz,” from which he was selling doses

to partygoers. Cardona and one of his friends approached Jauregui and his friends. The 

noz tank fell over. Jauregui and a friend tried to grab it, but Cardona’s friend wrestled it 

away and ran out of the party. Cardona pulled a gun on Jauregui and said, “ ‘Give me 

your money,’ ” and “ ‘It’s our tank now.’ ” Jauregui pushed the gun away, grabbed 

Cardona by the shoulder, and stabbed him several times with a switchblade. Cardona 

pushed Jauregui off of him and shot at Jauregui five or six times. Jauregui fell to the 

ground, and Cardona fired the last of the shots while standing over Jauregui or fleeing the 

scene. Jauregui suffered three gunshot wounds to his buttocks or the back of his thigh, 

and one to the back of his arm or shoulder. He later died of his injuries.

Bryan Carrillo, who was standing nearby, turned to run away when he heard the 

first of the shots. When he was no more than 15 to 20 feet away from Cardona, one of 

the later shots struck Carrillo in the back, seriously injuring him.
3

An information charged Cardona with one count of first degree murder and 

one count of attempted murder, in violation of Penal Code sections 187 and 664, 

respectively, along with special circumstance, gang, and firearm enhancements.

1

After a trial in July 2014, a jury found Cardona guilty of both counts and found all the 

enhancements true, with the exception of the firearm enhancement with respect to the 

attempted murder count. The court sentenced Cardona to life imprisonment without the 

possibility of parole for the murder, plus 25 years to life for the firearm enhancement, and 

15 years to life for the attempted murder, plus 25 years to life for the firearm 

enhancement.

DISCUSSION

Cardona raises several issues on appeal. He contends that the trial court erred 

when it gave a kill zone instruction with respect to the attempted murder charge.2 

Cardona further contends that the prosecution presented insufficient evidence to support 

his conviction for attempted murder. He also contends that the trial court erred by giving 

jury instructions regarding self-defense by an aggressor. Finally, he argues that the court 

erred in imposing a parole revocation fine.

3 We reverse Cardona’s attempted murder 

conviction and parole revocation fine, but otherwise affirm.

 

1 Unless otherwise specified, all statutory references are to the Penal Code.

2 Because we reverse Cardona’s conviction for attempted murder in count 2, we 

need not address his additional contentions pertaining to this count, including whether it 

was proper to impose a sentence of 15 years to life for this count, and whether the trial 

court erred by imposing a sentence enhancement with respect to this count that the jury 

did not find true.

3 Cardona contends that the trial court erred by imposing a $300 parole revocation 

fine. We agree. Because Cardona was sentenced to life imprisonment with no possibility 

of parole, it was improper to impose a parole revocation fine. (People v. Oganesyan

(1999) 70 Cal.App.4th 1178, 1181-1183.) 
4

I. Kill Zone Instruction

Cardona argues that the trial court erred when it instructed the jury pursuant to a 

kill zone theory of liability for attempted murder.4 We agree. 

A. Forfeiture

The Attorney General argues that Cardona forfeited this claim because his 

attorney failed to object to the kill zone instruction in the trial court. In general, the 

failure to object to an instruction bars a defendant from challenging the instruction on 

appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326.) When an instructional error affects 

a defendant’s substantial rights, however, a court may address it in spite of the failure to 

preserve the issue in the trial court. (People v. Lewis (2009) 46 Cal.4th 1255, 1294, 

fn. 28; §§ 1259, 1469.) “In this regard, ‘[t]he cases equate “substantial rights” with 

reversible error’ under the test stated in People v. Watson (1956) 46 Cal.2d 818.” 

(People v. Felix (2008) 160 Cal.App.4th 849, 857.) Because we find that instructional 

error in this case was reversible error under the People v. Watson test (see section I.C,

post, at p. 8), we conclude that Cardona did not forfeit the argument. (People v. Franco

(2009) 180 Cal.App.4th 713, 719.)

B. Instructional Error

“ ‘The trial court has the duty to instruct on general principles of law relevant 

to the issues raised by the evidence [citations] and has the correlative duty “to refrain 

from instructing on principles of law which not only are irrelevant to the issues raised 

by the evidence but also have the effect of confusing the jury or relieving it from 

 

4 The court instructed the jury as follows, pursuant to the then-current version of 

CALJIC No. 8.66.1: “A person who primarily intends to kill one person, may also 

concurrently intend to kill other persons within a particular zone of risk. This zone of 

risk is termed the ‘kill zone.’ The intent is concurrent when the nature and scope of 

the attack, while directed at a primary victim, are such that it is reasonable to infer the 

perpetrator intended to kill the primary victim by killing everyone in that victim’s 

vicinity.

“Whether a perpetrator actually intended to kill the victim, either as a primary 

target or as someone within a ‘kill zone’ is an issue to be decided by you.” When the 

court read this instruction to the jury, its wording varied slightly, but not materially.
5

making findings on relevant issues.” [Citation.] “It is an elementary principle of law 

that before a jury can be instructed that it may draw a particular inference, evidence 

must appear in the record which, if believed by the jury, will support the suggested 

inference [citation].” [Citation.]’ [Citation.]” (People v. Alexander (2010) 49 Cal.4th 

846, 920-921.) Accordingly, if the record contains no evidence that would support 

application of the kill zone theory, then the trial court erred by instructing the jury on 

that theory.

There is a crucial distinction between the mental states required for a defendant 

to be convicted of murder and attempted murder: “Murder does not require the intent to 

kill. Implied malice—a conscious disregard for life—suffices.” (People v. Bland (2002) 

28 Cal.4th 313, 327 (Bland).) In contrast, “ ‘[a]ttempted murder requires the specific 

intent to kill and the commission of a direct but ineffectual act toward accomplishing the 

intended killing.’ ” (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith), quoting People 

v. Lee (2003) 31 Cal.4th 613, 623.)

This distinction has created complications in cases where a defendant attacks 

multiple victims. Under the doctrine of transferred intent, when a defendant fires a gun 

in an attempt to kill one victim, but the bullet strikes and kills a bystander, the defendant 

is guilty of murder even if he did not know the bystander was present. (Bland, supra,

28 Cal.4th at pp. 320-321.) But the doctrine of transferred intent does not apply when 

an unintended victim survives the attack. (Id. at pp. 326-331.) The court in Bland

reasoned that applying the doctrine of transferred intent would make liability for 

attempted murder too vague: “The world contains many people a murderous assailant 

does not intend to kill. Obviously, intent to kill one person cannot transfer to the entire 

world. But how can a jury rationally decide which of many persons the defendant 

did not intend to kill were attempted murder victims on a transferred intent theory?” 

(Id. at p. 329.)

The Supreme Court in Bland, supra, 28 Cal.4th 313, introduced the kill zone 

theory to address another variation of this theme—situations in which a defendant 

attempts to kill an entire group of people in order to kill a specific victim. Because the 
6

defendant acts with the specific intent to kill everyone in the victim’s vicinity, he is guilty 

of attempted murder of each member of the group. (Id. at pp. 329-330.) The theory of 

guilt here is not transferred intent, but rather concurrent intent, meaning that “ ‘the nature 

and scope of the attack, while directed at a primary victim, are such that we can conclude 

the perpetrator intended to ensure harm to the primary victim by harming everyone in that 

victim’s vicinity.’ ” (Id. at p. 329.)

The Bland court provided examples of situations in which a kill zone theory is 

appropriate. The paradigmatic example is that of “ ‘an assailant who places a bomb on a 

commercial airplane intending to harm a primary target on board [who] ensures by 

this method of attack that all passengers will be killed.’ ” (Bland, supra, 28 Cal.4th 

at pp. 329-330.) The Bland court also cited the example of People v. Vang (2001) 

87 Cal.App.4th 554, 563–565, in which the defendants fired multiple rounds with 

high-powered, wall-piercing weapons at two occupied houses. Although the defendants 

primarily meant to kill one victim, they were convicted of 11 counts of attempted murder, 

one for each inhabitant of the house. (Id. at p. 563.) According to the Bland court, the 

court in Vang analyzed the case under the same reasoning as the kill zone theory, even if 

it did not use that name. (Bland, supra, 28 Cal.4th at p. 330.) In Bland itself, the court 

held that the kill zone theory was appropriate, noting that the defendant was liable for two 

counts of attempted murder for “fir[ing] a flurry of bullets at [a] fleeing car and thereby 

creat[ing] a kill zone.” (Id. at p. 331.)

By contrast, when there is no evidence of an intent to kill an entire group of 

people, courts have held that the kill zone instruction is inappropriate. Thus, in People v. 

Stone (2009) 46 Cal.4th 131 (Stone), the defendant fired a single shot at a group of 

10 people, not striking any of them. (Id. at pp. 134-135.) Our Supreme Court held that 

“[t]he kill zone theory simply does not fit the charge or facts of this case” because there 

was no evidence that the defendant intended to take the lives of the entire group in order 

to kill one victim. (Id. at p. 138.) In another case with similar facts, the Supreme Court 

held that “[t]he facts of this case do not establish that defendant created a ‘kill zone’

by firing a single shot from a moving car at a distance of 60 feet at [a] group of eight 
7

individuals.” (People v. Perez (2010) 50 Cal.4th 222, 232 (Perez).) And in People v. 

McCloud (2012) 211 Cal.App.4th 788 (McCloud), we held that a kill zone theory did not 

support the defendants’ conviction of 46 counts of attempted murder when they fired 

10 shots into a crowded party. (Id. at pp. 799-800.)

The Attorney General argues that McCloud, Perez, and Stone are distinguishable 

because, in each case, the defendant did not fire enough shots to kill all of the victims for 

whom he was convicted of attempted murder. Here, however, Cardona was charged 

with only one count of murder and one count of attempted murder, and he fired at least 

five shots, including one that struck and seriously wounded Carrillo. But the defining test 

of the kill zone theory is whether “the evidence supports a reasonable inference that, as 

a means of killing the primary target, the defendant specifically intended to kill every 

single person in the area in which the primary target was located.” (McCloud, supra, 

211 Cal.App.4th at p. 803.) A correlation between the number of shots fired and the 

number of victims in the alleged kill zone is merely one relevant factor. The Attorney 

General also points out that, unlike the defendants in McCloud and Stone, Cardona had a

primary target, namely Jauregui. In McCloud, supra, 211 Cal.App.4th at p. 801, we held 

that a kill zone instruction was inappropriate in part because there was no evidence that 

the attacker had a primary target. But the existence of a primary target, although 

relevant, is not sufficient for the application of the kill zone theory. Again, without 

evidence that the defendant intended to kill everyone in an area in order to kill the 

primary target, the kill zone theory is inapplicable. (Id. at p. 802.)

The facts of this case are a poor fit for the kill zone theory. The evidence showed 

that Cardona first fired his weapon after Jauregui stabbed him. As we explain below, 

because Cardona provoked the attack by drawing his gun and attempting to rob Jauregui, 

the shooting was not justifiable self-defense. Nevertheless, all the available evidence 

indicated that Cardona’s primary motivation in shooting Jauregui was to defend himself. 

The shooting took place in a crowded party, but no witness testified that Cardona sprayed 

everyone near Jauregui with gunfire. Without evidence of an attempt by Cardona to kill 
8

everyone in a particular area in order to kill Jauregui, it was error for the trial court to 

give the kill zone instruction.

C. Prejudice

A state law instructional error does not require reversal of a conviction unless it is 

reasonably probable that the defendant would have obtained a better result in the absence 

of the error. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214, citing People v. Watson, 

supra, 46 Cal.2d at pp. 836–837.) We conclude that there was a reasonable probability 

that Cardona would have obtained a better result if not for the kill zone instruction, and 

we accordingly hold that the conviction for attempted murder must be reversed.

The only theory of attempted murder liability the prosecution presented to the jury 

was the kill zone theory. In closing arguments, the prosecution suggested that the kill 

zone theory allowed for a conviction of attempted murder in the absence of specific 

intent. The prosecutor argued: “When Mr. Cardona is up and he is looking at 

Mr. Jauregui on the ground, lying on the ground, with his back towards him and he 

continues to shoot him, what is his purpose? He is intending to kill Mr. Jauregui at that 

point in time. Right. And when you have that, ladies and gentlemen, and you have this 

instance where we are at a party with numerous people, . . . and you heard that there 

[were] people around them, these people who are near that shooting site are in a ‘risk 

zone’ this ‘kill zone’ and so when Mr. Carrillo gets hit, he becomes this transferred 

intent that the kill zone instruction talks about, . . . this concurrent intent to kill others.”

The prosecutor thus effectively invited the jury to conclude that Cardona was guilty of 

attempted murder of Carrillo because he shot at Jauregui while other people were nearby, 

even if he did not intend to kill anyone other than Jauregui. Even assuming the kill zone 

theory was applicable under our facts, the prosecutor seriously misstated the application 

of the theory by suggesting that Cardona could be guilty of attempted murder through
9

transferred intent. As explained above, transferred intent does not apply to the kill zone 

theory, nor is it a valid theory for attempted murder.5

Given the erroneous instruction and the prosecutor’s misstatement of its 

application, it is not surprising that the jury struggled with its deliberations on attempted 

murder. Indeed, the jury submitted the following question to the court: “We need 

further clarification of the kill zone. Does there have to be intent to kill/murder in order 

to be found guilty of attempted murder? In other words, if someone is accident[al]ly 

shot in the kill zone, is this considered attempted murder?” The court’s response 

was not written or transcribed in the record, but it apparently did not clear up the 

jury’s confusion, because later the same day, the jury submitted another question: “Is 

disregarding/endangering human life and shooting, the same as intending to kill the 

primary victim by shooting everyone in the vicinity[?]” (Capitalization omitted.) This 

time, the jury withdrew the question before the court responded. These questions show 

that the jury had doubts about whether the kill zone instruction allowed it to find 

Cardona guilty of attempted murder even if he shot Carrillo only “accident[al]ly” or 

while “disregarding [or] endangering human life.” Without the improper instruction, 

it is reasonably probable that the jury would have found Cardona not guilty of attempted 

murder of Carrillo. For this reason, the error was prejudicial, and reversal of Cardona’s 

attempted murder conviction is required.

 

5 In addition, the prosecutor may have created further confusion by describing the 

kill zone as a “risk zone.” The term “zone of risk,” which also appears in the pattern jury 

instruction on the kill zone (CALJIC No. 8.66.1), suggests that a defendant may be 

guilty of attempted murder under a kill zone theory simply for placing others at a risk 

of being killed. This may encourage juries to convict defendants erroneously upon a 

finding of implied, rather than express, malice. None of the Supreme Court cases that 

have addressed the kill zone theory use the term “zone of risk” as a substitute for “kill 

zone.” (See Bland, supra, 28 Cal.4th 313; Smith, supra, 37 Cal.4th 733; Stone, supra,

46 Cal.4th 131; and Perez, supra, 50 Cal.4th 222.) 
10

II. Sufficiency of the Evidence of Attempted Murder

Cardona argues that the prosecution failed to present sufficient evidence to support 

his conviction for willful, deliberate, and premeditated attempted murder. Although we 

have already concluded that his conviction must be reversed, we must address this issue 

because if the prosecution did not produce substantial evidence of attempted murder, it 

would be barred from retrying Cardona for this offense.

In reviewing the sufficiency of the evidence, “[w]e view the evidence in the light 

most favorable to the prosecution, and presume in support of the judgment the existence 

of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin

(2004) 33 Cal.4th 1015, 1028.) Under this standard, we conclude that the prosecution did 

introduce sufficient evidence to convict Cardona of willful, deliberate, and premeditated 

attempted murder.

The evidence introduced at trial regarding the circumstances of the shooting was 

contradictory. Some witnesses testified that Cardona fired two or three shots at Jauregui, 

then stood over him and fired two or three more shots after Jauregui had fallen face down 

on the ground. Another witness testified that Cardona fired the last few shots while he 

was fleeing from the party. Carrillo testified that Cardona was within 20 feet of him, and 

possibly even closer, at the time of the shooting. From all this testimony, a jury could

reasonably conclude that Cardona aimed each of his shots at Jauregui, and that he hit 

Carrillo only because he missed his primary target. Alternatively, a jury could conclude

that Cardona aimed at least one of his shots at Carrillo to thwart anyone from preventing 

his escape. As the Attorney General correctly points out, “ ‘The act of firing toward a 

victim at a close, but not point blank, range “in a manner that could have inflicted a 

mortal wound had the bullet been on target is sufficient to support an inference of intent 

to kill.” ’ ” (Smith, supra, 37 Cal.4th at p. 741.) Furthermore, attempted murder requires 

that the defendant act with the specific intent to kill, but it does not require that the 

defendant have a specific victim in mind. (Stone, supra, 46 Cal.4th 131, 140-141.) 

Finally, “ ‘[t]he process of premeditation and deliberation does not require any extended 

period of time.’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Thus, the 
11

prosecution introduced sufficient evidence that could support a conviction for willful, 

deliberate, and premeditated attempted murder.

III. Self-Defense Instructions

Cardona contends that the trial court erred by instructing the jury on self-defense 

by an aggressor and contrived self-defense. He argues that there was insufficient 

evidence to support these instructions. We disagree.

A killing is justified and not punishable if it was committed in perfect self-defense. 

(People v. Lopez (2011) 199 Cal.App.4th 1297, 1305; § 197.) “For killing to be in 

self-defense, the defendant must actually and reasonably believe in the need to defend.

[Citation.] . . . To constitute ‘perfect self-defense,’ i.e., to exonerate the person 

completely, the belief must also be objectively reasonable.” (People v. Humphrey (1996) 

13 Cal.4th 1073, 1082.) A person who has been attacked may stand his ground and need 

not attempt to retreat. (People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346-1347.)

When the killer acted as an initial aggressor or contrived the need for self-defense, 

however, he may not claim self-defense as a justification unless he can show that he tried 

in good faith to refuse to continue fighting, and caused his opponent to be aware both that 

he wanted to stop fighting and that he actually had stopped fighting. (People v. Button

(1895) 106 Cal. 628, 632.)

Cardona argues that he was not the initial aggressor because it was his friend who 

initiated the confrontation with Jauregui by stealing the noz tank, and that Cardona drew 

his gun only after Jauregui stabbed him. But at least one witness testified that Cardona 

first approached Jauregui with his gun drawn, and only then did Cardona’s friend move 

in and take the noz tank. Furthermore, several witnesses said they saw Cardona get into 

fights and commit at least one robbery prior to the shooting. This was sufficient evidence 

to put into question whether Cardona had initiated the attack on Jauregui and created the 

need to use self-defense. Accordingly, the jury instruction on this issue was proper. 

(See People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 [self-defense instruction 

required where there was sufficient evidence for a jury to find defendant had requisite 

mental state].)
12

DISPOSITION

The judgment of the trial court is reversed with respect to count 2, attempted 

murder. The parole revocation fine is reversed. In all other respects, the judgment is 

affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

LUI, J.