1 

Filed 4/3/14 P. v. Ivy CA3 

NOT TO BE PUBLISHED 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(San Joaquin) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

DEVAUGHN LEE IVY, 

 Defendant and Appellant. 

C071077 

(Super. Ct. No. SF118684A) 

 Defendant DeVaughn Lee Ivy fired multiple rounds from a semi-automatic SKS 

rifle at rival gang member Antoneyo Robinson, who was standing in front of a liquor 

store in Stockton. Robinson’s girlfriend, Bretina Moore, was standing next to her car 

across the street when defendant opened fire. Their infant son, Jayshawn, was seated in a 

car seat in the back of the vehicle. Robinson ran for the car. Moore, now in the driver’s 

seat, waited for Robinson to get inside and then drove away at a high rate of speed. 

Defendant got into a car driven by another man and followed, firing at least 11 additional 

rounds into the back of Moore’s car before abandoning the pursuit. A bullet fragment 
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struck Jayshawn in the back of the head and lodged beneath the skin. Fortunately, the 

fragment had slowed considerably due to its impact with the car and did not cause a 

fatal injury. 

 Convicted by jury of three counts of premeditated attempted murder (Counts 1-3), 

one count of shooting at an occupied vehicle (Count 4), three counts of assault with a 

semi-automatic firearm (Counts 5-7), and one count of causing corporal injury to a child 

(Count 8), with various firearm and great bodily injury enhancement allegations found to 

be true, defendant was sentenced to serve an indeterminate term of 25 years to life, plus 

three consecutive life terms, plus a consecutive determinate term of 13 years 4 months 

in state prison. 

 On appeal, defendant contends: (1) the evidence is insufficient to support his 

convictions for the attempted murders of Moore and Jayshawn (Counts 2 and 3); 

(2) defendant’s trial counsel rendered constitutionally deficient assistance by (a) failing to 

object to certain statements made by the prosecutor during closing argument concerning 

the concurrent intent (i.e., kill zone) theory of attempted murder, and (b) stating during 

the defense closing argument the SKS rifle was “an attempted murder weapon” and a kill 

zone was created within Moore’s car during the shooting; and (3) the trial court 

prejudicially erred and violated his constitutional rights by telling the jury, in response to 

a question concerning the premeditation allegation attached to Counts 2 and 3 (i.e., “can 

you use that same kill zone scenario for premeditation?”), “yes, the jury can use the 

theory and logic of the kill zone in determining whether or not it was willful, deliberate, 

premeditated.” We affirm. As we explain, the evidence was more than sufficient to 

support defendant’s attempted murder convictions in Counts 2 and 3. Defense counsel’s 

performance during his and the prosecutor’s closing arguments did not fall below an 
3 

objective standard of reasonableness. And the trial court’s response to the jury’s question 

did not misstate the law or violate defendant’s constitutional rights. 

FACTS 

 Defendant and Robinson were members of rival street gangs. Defendant was a 

member of the Taliban Crips. Robinson was a member of the Sutter Street Crips. These 

rival gangs fought over who could sell drugs in certain areas of Stockton. Robinson and 

Michael McKinney, one of the leaders of the Sutter Street Crips, routinely sold drugs 

near the Cal Park liquor store, at the intersection of California Street and Park Street. At 

one time, defendant, Robinson, and McKinney were friends. 

 On January 26, 2011, around 7:00 p.m., defendant left his house on the north side 

of Stockton in a Honda Accord belonging to one of his roommates, Alicia Colwart. He 

brought with him a semi-automatic SKS rifle he kept in his room. Defendant had 

previously told another roommate, Michael Patrick, that he “had problems” with 

McKinney and needed the rifle “for protection.” 

 About an hour later, Robinson called Moore on her cell phone and told her to meet 

him at Cal Park. Moore, who was at her mother’s house with Jayshawn about a mile 

away, placed the child in a car seat in the back of her Chevy Caprice and drove to the 

liquor store. She parked across Park Street. Robinson was in the store’s parking lot with 

a group of people. As Moore described, “everybody was just out there talking.” One of 

Moore’s friends, who was also in the parking lot, walked over to Moore’s car and agreed 

to watch Jayshawn while Moore went into the store to buy a bottle of water. Robinson 

walked over to Moore as she crossed the street. They entered the store together, but 

Robinson returned to the parking lot while Moore spoke briefly with the store owner, 

paid for the water, and then walked back to the Caprice. 
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 When Moore reached the driver’s side door, defendant opened fire on the parking 

lot with the SKS rifle. He was standing outside Colwart’s car on the corner of Park Street 

and American Street, one block east of the liquor store. From this position, defendant 

fired “five to seven” rounds. His intended target was Robinson, who ran to Moore’s car 

after the shooting stopped and got in the front passenger seat. Moore, now in the driver’s 

seat, drove away as Jayshawn cried in his car seat. 

 Defendant got into the passenger side of the Accord, which was being driven by 

another man, and followed in pursuit. They caught up with the Caprice several blocks 

down Park Street. “Hanging out the passenger side window,” defendant fired at least 11 

rounds into the back of Moore’s car. Bullets struck the trunk and rear window, shattering 

the glass. One of the bullets fragmented upon impact with the car and struck Jayshawn in 

the back of the head, lodging in the muscle beneath the skin. As Moore described the 

chaotic scene inside the car: “First I heard like dinging, dinging, that is when I turned 

around and seen the lights. [Robinson] told me to go and more bullets kept coming, my 

back window shattered down. A bullet came through the vehicle, went -- one went 

through my radio. As I had my foot all the way on the pedal, [Robinson] reached over 

and grabbed the steering wheel. I hit a garbage can at the time that he reached over and 

grabbed the steering wheel, a bullet came through the back and straight through the front 

window. We kept going, and once we hit the garbage can, the vehicle behind us turned 

off.” Moore continued down Park Street, got onto Interstate Highway 5, and drove 

to their house. 

 When they reached the house, Moore inspected Jayshawn and discovered he had 

been hit by one of the bullets. She called 911. Robinson “yelled that they had shot his 

baby in the head” and “walked out” of the house. Police and emergency medical 

personnel arrived a short time later. Jayshawn was transported to San Joaquin General 
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Hospital and then transferred to Children’s Hospital in Oakland. The chief of surgery 

explained that, had the fragment not slowed considerably due to the bullet’s impact with 

the car, it would have penetrated “through the spinal cord and through the brain which 

would have been almost certainly a fatal injury.” The decision was made to clean and 

dress the wound and allow the fragment to “work itself out on its own.” 

 A few days later, defendant was again seen in the passenger seat of the same car 

near the Cal Park liquor store. This time, McKinney was standing next to the store. As 

the car drove south down California Street in front of the store, defendant pointed a gun 

at McKinney, who ran behind a woman. The car then drove away without shots 

being fired. 

 Defendant was arrested on February 9, 2011. His house was searched the same 

day. The SKS rifle was recovered from the living room. The rifle’s magazine contained 

26 unfired TulAmmo 7.62 by 39 millimeter rounds. A single unfired round was in the 

chamber. Another round was sitting on the coffee table. Three shell casings were found 

elsewhere in the house. Shell casings of the same brand and caliber recovered from the 

scene of the shooting were determined to have been fired by defendant’s rifle. 

 In addition to the forensic evidence, the prosecution presented eyewitness 

testimony from Delbert Rivers. About an hour before the shooting, Rivers robbed a gas 

station four blocks from Cal Park. He then ran to his house a short distance away, got 

onto his bicycle, and made his way to a house diagonally across the intersection from the 

liquor store. Rivers described the shooting recounted above and identified defendant as 

the shooter. Rivers was arrested for a string of robberies about a week after defendant 

was arrested for the shooting. Several months later, Rivers and defendant were in the 

same elevator at the San Joaquin County courthouse. Defendant said, “what’s going on” 

to Rivers, who told defendant not to speak to him and added: “[Y]ou shot that baby and I 
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don’t play that kind of stuff, I don’t, you know, go like that. You don’t shoot kids.” 

Defendant responded that “he was trying to shoot [Robinson] and not the child.” 

DISCUSSION 

I 

Sufficiency of the Evidence

 Defendant contends the evidence is insufficient to support his convictions for the 

attempted murders of Moore and Jayshawn. Specifically, he argues: “At most, the 

evidence supported a reasonable inference that Robinson . . . was targeted. But the 

targeting of Robinson cannot be the basis for convicting [defendant] of the attempted 

murders of Moore and Jayshawn. There is no evidence that [defendant] intended to kill 

Moore and Jayshawn. Indeed, the evidence indicated that an unseen Jayshawn was 

secreted in the back seat out of the public and [defendant’s] view.” We are not 

persuaded. 

 “ ‘To determine the sufficiency of the evidence to support a conviction, an 

appellate court reviews the entire record in the light most favorable to the prosecution to 

determine whether it contains evidence that is reasonable, credible, and of solid value, 

from which a rational trier of fact could find the defendant guilty beyond a reasonable 

doubt.’ [Citations.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. 

Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) The standard of 

review is the same in cases in which the prosecution relies on circumstantial evidence. 

(People v. Snow (2003) 30 Cal.4th 43, 66.) “ ‘Although it is the duty of the jury to acquit 

a defendant if it finds that circumstantial evidence is susceptible of two interpretations, 

one of which suggests guilt and the other innocence [citations], it is the jury, not the 

appellate court which must be convinced of the defendant’s guilt beyond a reasonable 

doubt.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Accordingly, we must 
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affirm the judgment if the circumstances reasonably justify the jury’s finding of guilt 

regardless of whether we believe the circumstances might also reasonably be reconciled 

with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.) 

 The mental state required for attempted murder differs from that required for 

murder. Murder requires malice, express or implied. Express malice, i.e., intent to kill, 

requires a showing the defendant either desired the death of the victim, or knew to a 

substantial degree of certainty death would occur. (People v. Smith (2005) 37 Cal.4th 

733, 739.) Implied malice simply requires a showing the defendant consciously 

disregarded human life. (People v. Lasko (2000) 23 Cal.4th 101, 107.) Attempted 

murder requires express malice; a conscious disregard for life will not suffice to support a 

conviction for attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327-328 

(Bland).) 

 Another difference between murder and attempted murder involves the doctrine of 

transferred intent. “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 someone else. The defendant’s 

mental state must be examined as to each alleged attempted murder victim. Someone 

who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the 

attempted murder of the intended victim, but not of others.” (Bland, supra, 28 Cal.4th at 

p. 328; People v. Stone (2009) 46 Cal.4th 131, 141.) 

 However, where the defendant intends to kill a specific target and employs a 

means of attack designed to kill everyone in the vicinity of the target in order to ensure 

the death of the target, the defendant creates a “kill zone” around the target, and the jury 

may reasonably infer the defendant possesses the concurrent intent to kill everyone 
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within the kill zone. (Bland, supra, 28 Cal.4th at pp. 326-327, 329-330.) “ ‘The intent is 

concurrent . . . when 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. For example, an assailant 

who places a bomb on a commercial airplane intending to harm a primary target on board 

ensures by this method of attack that all passengers will be killed. Similarly, consider a 

defendant who intends to kill A and, in order to ensure A’s death, drives by a group 

consisting of A, B, and C, and attacks the group with automatic weapon fire or an 

explosive device devastating enough to kill everyone in the group. The defendant has 

intentionally created a “kill zone” to ensure the death of his [or her] primary victim, and 

the trier of fact may reasonably infer from the method employed an intent to kill others 

concurrent with the intent to kill the primary victim.’ ” (Id. at pp. 330-331, quoting Ford 

v. State (1993) 625 A.2d 984, 1000-1001.) 

 This case is indistinguishable from Bland, supra, 28 Cal.4th 313, in which the 

defendant and another man, both gang members, fired several rounds into a car driven by 

a rival gang member. The car also contained two passengers. Convicted of the first 

degree murder of the driver and the premeditated attempted murders of the passengers, 

the Court of Appeal reversed the attempted murder convictions. (Id. at p. 318.) Our 

Supreme Court reversed. After adopting the “kill zone” theory of concurrent intent, set 

forth above, the court explained: “This case permits―virtually compels―a similar 

inference. Even if the jury found that defendant primarily wanted to kill [the driver] 

rather than [the] passengers, it could reasonably also have found a concurrent intent to 

kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing 

car and thereby created a kill zone. Such a finding fully supports attempted murder 

convictions as to the passengers.” (Id. at pp. 330-331.) So too here. While the jury 
9 

likely concluded defendant’s primary target was Robinson, it could reasonably also have 

found defendant employed a means of attack designed to kill everyone in the car in order 

to ensure Robinson’s death and therefore possessed the concurrent intent to kill everyone 

within the car. Nor does it matter whether defendant could see that Jayshawn was in the 

car seat. (See People v. Adams (2008) 169 Cal.App.4th 1009, 1022-1023; see also 

People v. Vang (2001) 87 Cal.App.4th 554, 563-564 [where the jury drew a reasonable 

inference the “defendants harbored a specific intent to kill every living being within the 

residences they shot up,” it did not matter that “they could not see all of their victims”].) 

 We conclude the evidence is sufficient to support defendant’s convictions for the 

attempted murders of Moore and Jayshawn. 

II 

Ineffective Assistance of Counsel

 Defendant also claims his trial counsel rendered constitutionally deficient 

assistance by (a) failing to object to certain statements made by the prosecutor during 

closing argument concerning the kill zone theory, and (b) conceding certain points during 

the defense closing argument. We disagree. 

 A criminal defendant has the right to the assistance of counsel under both the Sixth 

Amendment to the United States Constitution and article I, section 15, of the California 

Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the 

defendant not to some bare assistance but rather to effective assistance. [Citations.] 

Specifically, it entitles him [or her] to ‘the reasonably competent assistance of an attorney 

acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid., quoting 

United States v. DeCoster (D.C.Cir. 1973) 487 F.2d 1197, 1202.) “ ‘In order to 

demonstrate ineffective assistance of counsel, a defendant must first show counsel’s 

performance was “deficient” because his [or her] “representation fell below an objective 
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standard of reasonableness . . . under prevailing professional norms.” [Citations.] 

Second, he [or she] must also show prejudice flowing from counsel’s performance or lack 

thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833; accord, Strickland v. 

Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) 

 The burden of proving a claim of ineffective assistance of counsel is squarely 

upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) In determining 

whether counsel’s performance was deficient, we must exercise “deferential scrutiny” 

(People v. Ledesma, supra, 43 Cal.3d at p. 216) and refrain from engaging in “the 

perilous process of second-guessing” counsel’s rational tactical decisions. (People v. 

Miller (1972) 7 Cal.3d 562, 573.) Where, as here, the record does not contain an 

explanation for the challenged aspect of representation, the judgment must be affirmed on 

appeal unless counsel was asked for an explanation and failed to provide one or there 

simply could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 425, 

overruled on another ground as stated in People v. Ortiz (2012) 208 Cal.App.4th 1354, 

1372.) Thus, we may reverse “ ‘only if the record on appeal affirmatively discloses that 

counsel had no rational tactical purpose for his [or her] act or omission.’ [Citation.]” 

(People v. Zapien (1993) 4 Cal.4th 929, 980.) 

 We turn now to defendant’s specific arguments, neither of which has merit. 

A. 

The Prosecutor’s Argument 

 During closing argument, the prosecutor made the following statements regarding 

the kill zone theory: 
11 

 “Now, we talked about a direct step indicating a definite unambiguous intent to 

kill, and he did that when he fired that assault rifle, and it’s a direct movement towards 

the commission of a crime. Now we know his target was [Robinson], but attempted 

murder also applies when the defendant creates something called a kill zone, and that’s 

what he did here. The law says a person may intend to kill a specific victim and at the 

same time intend to kill everyone in a particular harm or kill zone. The jury instruction 

on kill zone says this: [‘]A person, the defendant, may intend to kill a specific victim, 

[Robinson], and at the same time intend to kill everyone in a particular zone of harm or 

kill zone. In order to convict the defendant of the attempted murders of [Moore] and/or 

Jayshawn, the People must prove that the defendant not only intended to kill [Robinson], 

but either intended to kill Jayshawn and [Moore], or everyone within the kill zone,[’] and 

his intent was to kill everybody in that car. He’s not specifically targeting [Robinson], 

he’s shooting [Robinson’s] car up. His rounds went straight in through the left driver’s 

side, through the right driver’s side. We know it went through the trunk, through the 

backseat fragmenting through the car seat, that’s a kill zone. 

 “We know the back window was shot out, the bullet holes went through the very 

front window. He’s not being discriminatory about who he is trying to shoot, he’s trying 

to shoot everybody in that car, and that’s creating a kill zone through the car seat, through 

the back window, and we know it fragments and ends up there in Jayshawn’s head.” 

 Defendant argues his trial counsel provided ineffective assistance by failing to 

object to these statements because they “misrepresent[ed] and incorrectly inform[ed] the 

jury on the law” of concurrent intent. According to defendant, “[t]rying to shoot 

everybody in the car did not create a kill zone whereby everybody was concurrently 

targeted to be killed.” He is mistaken. As we have already explained, from defendant’s 

act of firing at least 11 rounds into the back of Moore’s car, the jury could reasonably 
12 

have concluded he possessed the concurrent intent to kill everyone within the car. The 

prosecutor’s argument simply stated as much. Nor is this case like People v. Anzalone

(2006) 141 Cal.App.4th 380, in which the Court of Appeal held the prosecutor misstated 

the law by arguing the defendant there could be convicted of four counts of attempted 

murder based on only two gunshots fired into a crowd simply because all four alleged 

victims were in “the zone of danger.” (Id. at pp. 391-393.) Here, the prosecutor 

accurately described the kill zone theory and argued it applied to the facts of this case. 

Defense counsel appropriately did not object. 

B. 

Defense Counsel’s Argument 

 Defendant also argues his trial counsel provided ineffective assistance by 

conceding during the defense closing argument that the SKS rifle was “an attempted 

murder weapon” and a kill zone was created within Moore’s car. With respect to the kill 

zone theory, defense counsel stated: “The Prosecutor said that the shooter attempted to 

kill everyone. He says that the person had the intention to kill everyone . . . within this 

kill zone, that is, if some people are standing on the sidewalk and a car goes by and does 

a drive-by and they only want to shoot one person but they actually hit two of them and 

they don’t die, because the kill zone is kind of an attempted murder situation as opposed 

to a murder thing, so it would not apply to that. A couple of people are wounded, you 

don’t have to actually attempt to kill everyone, but he thinks that the person attempted to 

kill everyone. I think that’s probably the right -- I think that’s probably the right analysis 

based on the facts of just the physical, the number of shots and the close range and heavy 

weapon and all those kinds of things like that that there was an intention.” 

 Defendant argues these concessions “for all practical purposes denied [him] his 

right to have guilt or innocence decided by the jury.” Not so. In light of the 
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overwhelming evidence the SKS rifle was used in the shooting and a kill zone was 

created within Moore’s car, defense counsel made a reasonable tactical decision to 

concede these points and argue someone other than defendant was the shooter. 

Specifically, in over 70 pages of reporter’s transcript, defense counsel urged the jury to 

believe the testimony of defendant’s sister, Brittany Ivy, i.e., that defendant was on a 

pizza run in a different car with Patrick and another man when the shooting occurred and 

Colwart had taken her car earlier in the day and did not return until later that night. 

Defense counsel also challenged the credibility of Rivers and Patrick, argued the 

prosecution had not established any motive on defendant’s part, and posited whoever 

committed the crime, likely a member or associate of the Taliban Crips, brought the SKS 

rifle over to defendant’s house sometime after the shooting. Given the state of the 

evidence, defense counsel reasonably could have concluded that challenging either the 

SKS rifle was used in the crime or Moore’s car was turned into a kill zone by the firing of 

at least 11 rounds into the back of the car would lessen his credibility in the eyes of the 

jury and the strength of his defense that defendant was not the shooter. (See People v. 

Hart (1999) 20 Cal.4th 546, 631 [“trial counsel reasonably could have concluded that 

challenging the evidence more vigorously in his argument risked alienating the jury”].) 

 Defense counsel’s performance during his and the prosecutor’s closing arguments 

did not fall below an objective standard of reasonableness. 

III 

Instructional Error

 Finally, we reject defendant’s assertion the trial court prejudicially erred and 

violated his constitutional rights by telling the jury it could “use the theory and logic of 

the kill zone in determining whether or not [the attempted murders charged in Counts 2 

and 3 were] willful, deliberate, premeditated.” 
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 After returning guilty verdicts on all counts, the jury foreperson stated the jury was 

unable to reach a unanimous decision as to the premeditation allegation attached to 

Counts 2 and 3. The trial court asked: “Does anyone have any questions I might be able 

to answer that would be of assistance as to that issue? Anyone have any questions you 

want to ask about that? [¶] [Foreperson], do you feel that if you had any additional time 

that that would be of assistance in being able to reach a verdict? In other words, is there a 

reasonable likelihood the jury would be able to reach a verdict as to that issue?” The 

foreperson answered: “It’s a possibility, Your Honor.” The trial court then sent the jury 

home for the day and ordered the jurors to resume their deliberations at 9:00 a.m. the 

following day. 

 Shortly after deliberations resumed, the jury sent the trial court two notes. The 

first note stated: “Please explain or interpret the definition of the prem[e]ditation, expand 

with further explanation.” The second note stated: “Please elaborate and expand on ‘kill 

zone’ as it applies to willfulness, deliberation and prem[e]ditated.” In response to these 

notes, the trial court brought the jury into the courtroom and re-read CALCRIM Nos. 600 

and 601. 

 After re-reading CALCRIM No. 6001 to the jury, the trial court stated: “Then the 

key instruction really is [CALCRIM No.] 601 because the defendant has been found 

 

1 As re-read to the jury, CALCRIM No. 600 stated: “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 step toward killing another person; and [¶] 2. The 

defendant intended to kill that person. [¶] A direct step requires more than merely 

planning or preparing to commit murder or obtaining or arranging for something needed 

to commit murder. A direct step is one that goes beyond planning or preparation and 

shows that a person is putting his plan into action. [¶] A direct step indicates a definite 

and unambiguous intent to kill. It is a direct movement toward the commission of the 

crime after preparations are made. [¶] It is an immediate step that puts the plan in 

motion, so that the plan would not -- so that the plan would have been completed if some 
15 

guilty of attempted murder by the jury as to [Moore] and [Jayshawn]. So the remaining 

issue is whether or not it was willful, deliberate, premeditated. So [CALCRIM No.] 601 

covers that.” As re-read to the jury, CALCRIM No. 601 stated: “If you find the 

defendant guilty of attempted murder, you must then decide whether the People have 

proved the additional allegation that the attempted murder was done willfully and with 

deliberation and premeditation. [¶] The defendant acted willfully if he intended to kill 

when he acted. [¶] The defendant deliberated if he carefully weighed the considerations 

for and against his choice and, knowing the consequences, decided to kill. [¶] The 

defendant decided to kill -- the defendant premeditated if he decided to kill before acting. 

[¶] The length of time the person spends considering whether to kill does not alone 

determine whether the attempted killing is deliberate and premeditated. The amount of 

time required for deliberation and premeditation may vary from person to person and 

according to the circumstances. A decision to kill made rashly, impulsively, or without 

careful consideration of the choice and its consequences is not deliberate and 

premeditated. On the other hand, a cold, calculated decision to kill can be reached 

quickly. The test is the extent of the reflection, not the length of time. [¶] The People 

have the burden of proving this allegation beyond a reasonable doubt. If the People have 

not met this burden, you must find this allegation has not been proved.” 

 

circumstances outside the plan had not interrupted the attempt. [¶] A person may intend 

to kill a specific victim or victims and, at the same time, intend to kill everyone in a 

particular zone of harm or kill zone. In order to convict the defendant of the attempted 

murder of [Jayshawn] or [Moore], the People must prove that the defendant not only 

intended to kill [Robinson], but also either intended to kill [Jayshawn] or [Moore], or 

intended to kill everyone within the kill zone. [¶] . . . [¶] If you have a reasonable 

doubt whether the defendant intended to kill [Moore] or [Jayshawn] or intended to kill 

[Robinson] by killing everyone in the kill zone, then you must find the defendant not 

guilty of the attempted murder of [Moore] or [Jayshawn].” 
16 

 The trial court then asked the foreperson: “So does that answer the question[?]” 

The foreperson answered: “Somewhat.” In response to the trial court’s solicitation of 

any further questions, Juror No. 10 asked: “Based on the finding has been that attempted 

murder and if you use the logic or the scenario of kill zone in that situation [¶] . . . [¶] 

but then you are struggling with using that same -- or can you use that same kill zone 

scenario for premeditation? That’s the question.” Following a discussion at bench, the 

trial court answered: “To answer the question, yes, the jury can use the theory and logic 

of the kill zone in determining whether or not it was willful, deliberate, premeditated.” 

 Defendant argues the trial court abused its discretion by answering this question. 

We disagree. “When a jury asks a question after retiring for deliberation, [Penal Code] 

‘[s]ection 1138 imposes upon the court a duty to provide the jury with information the 

jury desires on points of law.’ [Citation.] But ‘[t]his does not mean the court must 

always elaborate on the standard instructions. Where the original instructions are 

themselves full and complete, the court has discretion under [Penal Code] section 1138 to 

determine what additional explanations are sufficient to satisfy the jury’s request for 

information.’ [Citation.] We review for an abuse of discretion any error under [Penal 

Code] section 1138. [Citation.]” (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) 

Here, at the time the question was asked, the jury had already found defendant guilty of 

the attempted murders of Robinson, Moore, and Jayshawn, and further that the attempted 

murder of Robinson was done willfully and with deliberation and premeditation. Given 

the facts of this case, and the content of Juror No. 10’s question, it is reasonable to 

conclude the jury found defendant guilty of the attempted murders of Moore and 

Jayshawn based on the kill zone theory of concurrent intent, but struggled with whether 

or not defendant could be found guilty of the willful, deliberate, and premeditated 

attempted murders of Moore and Jayshawn based on the fact he willfully and with 
17 

deliberation and premeditation attempted to kill Robinson by employing a means of 

attack designed to kill everyone in the car, including Moore and Jayshawn. The answer 

is “yes.” We conclude this is what the jury would have understood the trial court to mean 

by “us[ing] the theory and logic of the kill zone in determining whether or not [these 

attempted murders were] willful, deliberate, premeditated.” The trial court did not abuse 

its discretion in so instructing the jury. 

DISPOSITION 

 The judgment is affirmed. 

 HOCH , J. 

We concur: 

 RAYE , P. J. 

 ROBIE , J.