Filed 6/16/20 O n transfer (B264402)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re

JUAN MARSHALL RAYFORD

o n Habeas Corpus

. B 264402

(Los Angeles County Super. Ct. No. M A 028053 )

In re

DUPREE ANTOINE GLASS

o n Habeas Corpus

. B303007

ORIGINAL PROCEEDING S ; petition s for a writ of habeas

corpus. Robert J. Perry , Judge. Petition s granted.

Law Offices of Annee Della Donna and Annee Della Donna
for Petitione rs

.

Xavier Bec erra, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey , Assistant Attorney General

, Zee Rodriguez and Noah P. Hill , Deputy Attorney s General, for Respondent.2 A jury convicted codefendants Juan Marshall Rayford and Dupr ee Antoine Glass of 11 counts of attempted willful,
deliberate

, and premeditated murder and one count of shooting at an inhabited dwelling based on their partic ipation in a 2004 shooting at the home of Sheila Lair

. On direct appeal, w e affirmed Rayford’s and Glass’s conviction s but vacated the gang and firearm enhancements

. ( People v. Rayford ( July 18, 2006,
B179017 ) [nonpub. opn.] ( Rayford I ). )
On May 29, 2015 Rayford filed a petiti on for writ of habeas corpus, in part arguing the jury was improperly instructed on the

“ kill zone ” theory of concurrent specific intent to prove the 11 counts of attempted murder. After w e denied the petition

, t he
California S upreme Court granted review but deferred action pending consideration of the kill zone theory in People v.
Canizales (2019) 7 Cal.5th 591, 597 ( Canizales )

. ( In re Rayford (Nov. 24, 2015, S229536 ) .) The Supreme Court likewise deferred
action on Glass ’s March 9, 2017 petition for writ of habeas

corpus

. ( In re Glass (Sept. 18, 2019, S240520 ) .)
On June 24, 2019 the Supreme Court held in Canizales that “a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create a
zone of fa tal 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 har m.” ( Canizales , supra , 7 Cal.5th at

p p. 596

- 597. )3 On September 18, 2019 the Supreme Court transferred Rayford’s case to this court with directions to vacate our prior order denying the petition for writ of habeas corpus and “ to reconsider the petition in light of [ Canizales ].” ( In re Rayford

, supra , S229536

. ) Also on September 18, 2019 the Supreme Court denied Glass’s petition for writ of habeas corpus “without prejudice to filing the petition in the Court of Appeal , Second Appellate District , for consideration of our opinion in [ Canizales ]

. ” ( In re Glass

, supra , S 240520 .) Glass filed a petition for writ of habeas corpus in this court on December 13, 2019. On
December 18, 2019 we issued an order to show cause why relief should not be granted.
We conclude Canizales applies retroactively to Rayford’s
and Glass’s convictions . Further, this is not one of the “relatively
few cases in which the [kill zone] theory will be applicable and an instruction appropriate.” ( Canizales, supra , 7 Cal.5th at p. 608.)
It was prejudicial error for the trial court to instruct the jury on the kill zone theory , and we now grant the petition s

.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Information
In 2004 an information charged Rayford and Glass with 11
counts of attempted willful, deliberate, and premeditated murder ( Pen. Code, § § 187, subd. (a), 664) 1 and one count of shooting at an inhabited dwelling ( § 246). Each attempted murder count named a single victim: Kimberl y Lair (count 1), Sheila Lair

1 All further statutory references are to the Penal Code.4

(count 2), Darrel Edward 2 (count 3), Donisha Williams (count 4), Jasmin Thompson (count 5), Shadonna Williams (count 6), Terry Watson (count 7), Ebony Howard (count 8), Je r terry Burns (count 9), Donte Burns (count 10), and Jer maine Cooper (count 11). 3 As to all counts, the information alleged Rayford and Glass
committed the offenses for the benefit of, at the direction of, or in
associat ion with a criminal street gang ( § 186.22 , subd. (b) )

, a principal personally used a fi r ear m ( § 12022.53, subds

. (b) & (e)(1) )

, and a principal personally and intentionally discharged a
firearm ( § 12022.53, subds

. ( c ) & (e)(1) )

. 4

B. The Evidence at Trial 5

1. The People’s case On the night of January 2, 2004

, 18

- year

- old Rayford and

17

- year

- old Glass were at a party. The re they saw 15

- year

- old
Donisha with her adult sister Shadonna and 17

- year

- old cousin Perry. Donisha, Shadonna, and their sister Shontel Williams lived with their mother, Sheila. Glass had kn o w n Donisha and

2 Although the information refers to Darrel as “Darrell,” we use the spelling from the trial testimony.

3 We refer to the alleged victims by their first names to avoid confusion because some share a last name

.

4 Although the information does not allege the gang and firea rm enhancements as to count 11 (Jermaine ), the jury found the allegations true as to all counts. The record does not reflect whether the information was amended before trial.

5 We take the discussion of the evidence at trial principally from Rayford I

, supra , B179017 , with additional facts from the trial record filed as exhibit s to the petitions filed by Rayford and Glass

.5

her family for several years and had eaten many meals at the family ’s ho us e in the past year. Sheila described Glass as “a part of our family.” Glass’s sister went to school with one of Sheila’s daughters ; Rayford went to school with another

. Rayford and
Gl ass sometimes visited Sheila ’s house together . Glass and Perry
were also friends. During the party Glass and Perry began to argue. Glass gathered some people, including Rayford, to confront Perry
outside. Donisha , Shadonna, and Perry got in a car to leave.
Someone tried to rea ch into the car and grab Perry. Rayford was yelling. Shadonna drove away. Shadonna and Donisha dropped Perry off at their grandmother’s house and returned to their own
hous e sometime after 1:00 in the morning. Shortly thereafter Glass called Donisha on her mobile phone walkie

- talkie. Glass and Donisha frequently
communicated in this manner. Glass asked where Perry was, explaining he wanted to fight him

. Donisha told Glass that Perry was at her grandmother’s hou se. Glass repeated his question several times, and Donisha felt Glass thought she was lying.
Donisha invited Glass to her hous e to see fo r himself Perry was
not there.
Ten minutes later

, at around 1: 30 a.m. , Glass called
Donisha and told her he was at her hou se. Donisha and
Shadonna exited their house as Glass ’s car and two other cars pulled up. Glass, Rayford , and many other young men exited the
cars. Glass directed Donisha to tell Perry “t o come outside and catch a fade, ” meaning to fight Glass. But Perry was not in the
house

. Donisha and Shadonna went back inside to wake up t he i r mother. Also in the house were Shontel ; Sheila’s sister Kimberly ; Kimberly’s boyfriend ; and Sheila’ s nieces and nephews Ebony,6

Jasmin, Jermai ne, Jeterry, 6 Kevante, and Donte ; as well as
Sheila’ s two neighbors

, Terry and Darrel. 7 The family members and neighbors ranged in age from six to 21 years old.
Sheila exited the front door

, and “ [m] ore than a few” of the people in the house followed her outside, including Donisha, Terry, and Darrel. As she walked outside, Sheila saw a large group of young men standing in the street and on her lawn. 8
Sheila’s house was on a corner lot and had a sout h

- facing front
door. She stood in “ the middle of the grass ” in her front yard.
Sheila recognized Glass, Rayford , and “Fat Man” standing on the

grass. Fat Man stood to her left ( on the east side of the house ), while Glass stood in front of her, and Rayfo rd stood to her right ( to the west) at the edge of the yard near a tree.
Glass told Sheila “to send [Perry] outside

. ” Sheila told him Perry was not there and there would be no fight. As Glass approached Sheila, Sheila told “the kids to go back in the house.”
While Sheila spoke with Glass, a man identified as De’Antwan
and another man ran behind Sheila and struck Terry. Sheila attempted to corral her family and neighbors back inside by “walking backwards with [her] arms out pushing all the kids to go back in the house.” From an area to Sheila’s left, where Fat Man was standing, gunshots were fired. Sheila heard the bull ets hit the house.

6 We assume Jeterry is the same person as “Jerterry Burns” named in c ount 9 of the information.

7 Shontel and Kevante were not named as victim s in the information.

8 Sheila estimated there were 20 to 25 young men present but also stated it “could have been” as few as 11 or 13 , while Donisha estimated there were 10 or 11.7

Then Glass started shooting “ directly towards the house ” from his position in front of Sheila. At this point Glass was standing about 33 feet from Sheila, on the grass near the sidewalk. Sheila

saw a shot fired from where Glass was s tanding toward the first story front window. S heila also saw a flash from where Rayford
stood to Sheila’s right . She did not see Rayford holding a gun but
believed he fired more than one shot “ up in the air, ” aiming above the roof of the garage. Sheila “started pushing” those gathered

near the front door into the house , backing up to the concrete
surface near her front door . Some of those gathered ran into the house, others dropped to the ground and tried to crawl t o the
house. Shots “came towards” Sheila and struck the wall near
her , but they did not hit her. But Darrel was s truck in the leg
with a bullet. Donisha testified Rayford fired the first shot “straight up”
in the air. Glass fired into the front window

. No one was standing in front of the window, but one of Donisha’s cousin s was looking out the window

. 9 Don isha could not tell how many of th e

group near the front door were able to get back inside during the gunfire. Inside the house, Sheila’s si st er Kimberly was lying
down in the second floor west bedroom when she heard five or six gunshots. As she stood, a bullet grazed her back and landed on
her bed

. Kimberly ran downstairs , and Sheila told her Glass had “shot up” the house. About 45 minutes after the shooting

, Kimberly called Glass and asked why he had fired at their house, explaining she was injured. Glass responded, “That’s what you bitches get.”

9 Donisha did not identify by name the cousin in the window.8 Los Angeles County Sheriff’s Deputy Ed Anderson investigated the crime scene and found evidence eight bullets
struck the house. Fou r were fired from east to west

, and four
were fired from south to north

. The bullet that grazed Kimber ly’s back traveled east to west, striking “the fascia board above th e front window

, ” then traveled through the second floor east
bedroom where it was “deflected” by the bedroom’s bunk bed, penetrating seven walls before reaching Kimberly in the second
floor west bedroom

. A second bullet traveled east to west through the w ooden frame of the front living room window, striking the interior ballast above the front door. A third bullet
from the same direction struck the wooden molding to the east
exterior wall at the main entrance. A fourth bullet travelled east

to west and s truck the exterior wall to the west of the front door

. A bullet travelled south to north and pierced the glass in the front living room window , striking the north dining room wall
inside

. A bullet from the same direction struck the exterior wall
at the main entrance 30 inches above t he ground and entered the
house through “the right wall as you are walking in.” A third
south

- to

- nor th bullet traveled through the front exterior wall into
the living room wall about 47 inches above the ground. A fourth
struck the exterior wall just west of the main entrance about 74 inches above the ground. Although Deputy Anderson determined the gunfire originated from two general directions (east to west
and south to north) , he could not determine the number of
shooters

. 10 However, he opined the northerly fire could be
consistent with two shooter s fir ing from south to north.

10 Detective Anderson also did not opine on the type of guns that were fired.9 The People also presented evidence Rayford and Glass were
members of criminal street gangs. But there was no evidence anyone at the scene uttered gang slogans or displayed gang signs.

2. The defense case Rayford testified he went to the party with Glass and later went to Donisha’s house to watch Glass fight Perry. He did not bring a gun. When he arrived at Donisha’s house, he got out of the car and stood nearby. Rayford saw Glass speak with Sheila by the front door of the house. He also saw De’Antwan and others fighting. Then he heard seven to eight gunshots, but he
did not see w ho fired. Rayford got back in the car and ducked down. About a minute later Glass got in the car, and they drove to Rayford’s house. Rayford did not see Glass with a gun. He denied he was a member of a gang.
Glass testified he had a verbal argument wit h Perry at the party and went to Donisha’s house afterward. Glass admitted he went to the house with Rayford and others to fight Perry but denied he brought a gun. Glass was standing a foot away from the front door, fighting with neighbors Terry and Darr el, when he heard five to seven gunshots. He did not recognize the man who

was shooting. Glass dropped to the ground. Glass then drove to Rayford’s house, where he received a walkie

- talkie call from Kimberly . She stated , “We [are] going to kill you if you don’t tell
us who did it.” Glass denied making the statement Kimberly
attributed to him. Glass also denied telling sheriff’s deputies he was a member of a gang. Glass’s father, Mark Glass, testified he visited Sheila at her
house shortly after the shooting. Sheila told Mark she was talking to Glass when “someone started firing a gun off in the10

back of her.” Sheila did not identify Glass as a shooter to Mark.
Mark did not tell the police about this conversation with Sheila.

C. Jury Instructions and Closing Argument
The tria l court i n structed the jury with CAL JIC No. 8.66.1,
that to convict a defendant of attempted murder it must find “ 1.
A direct but i ne ffectual act was done by one person toward s killing another human being; and [¶] 2

. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” The court
instructed f

urther, “ A person who primarily intends to kill one

pers on, 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 i s reasonable to infer the perpetrator intended to ensure harm to the primary victim by harming 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 zon e’ is an
issue to be de cided by you.” During his closing argument, the prosecutor explained the kill zone theory: “ What we are talking about is an idea known as
concurrent intent. And again, you mainly intend to kill one [person ], but at the same time, y ou can be found guilty of intending to kill everyone in what’s known as a kill zone, a zone
of risk. Around that person. [¶] And what you do is you look at the facts to determine if this is present.

. . . Where were these people? In this case, the y were gathered around the front door when the shots started. They were crawling inside the house as
the shots continued. [ ¶] The idea was whether Rayford and11

Glass intended to ensure harm to their intended victim in a way that exposed everyone in their vicinity to harm.” The prosecutor noted the bullets had traveled through the walls and entered the house, adding, “This inc ident involves what appears to be the majority of the living space in this house. And that is the concept I was describing when we were talking about kill zone. It’s not just the front door area.” The prosecutor continued, “Perry is not a named victim in this case. It’s not the prosecution’s theory that Perry is even the primary victim in t his case. Perry wasn’t there.

. . . [¶] The
victims in this case are the named victims. We have three victims, primary victims. One of them [ was ] Sheila Lair because she was directly confronting these two gang members, and then we have the other two that I would regard as primary victims because they were struck by gunfire [ Darrel and Kimberly] , but the main focus of that attack at that point when the shot s were fired and the triggers were pulled was Sheila Lair. Sheila Lai r is your primary victim here.”

D. The Verdict and Sentencing The jury convicted Rayford and Glass of 11 counts of attempted willful, deliberate, premeditated murder and one count of shoot ing at an inhabited building

. The jury found true all the special allegations

. The trial court sentenced each
defendant to 11 consecutive life sentences for the attempted murders plus 220 ye ars on the firearm enhancements (20 years
on each count under § 12022.53, subd s

. (c) & (e) ) . The court stayed the sentences on the gang enhancements and on count 12
for sho oting at an inhabited dwelling.12

E. Defen d ants’ Direct Appeal
In Rayford I

, Rayford argued the re was insufficient evidence to support the attempted murder convictions under the kill zone theory because there was not sufficient evidence of a primary target or a kill zone

. 11 We concluded the evidence was
sufficient , reasoning , “ Simply because [ People v. Bland (2002)

28 Cal.4th 313, 329

- 330 ] involved a single primary target does not necessarily mean the theory of concurrent intent only applies when a primary target is identified. In this case, substantial evidence supports a finding there were several potential primary
targets. The shooters could have targeted Sheila because she disrespected Glass by telling him there would be no fighting at her house that night. Sheila’ s neighbor Terry could have been the primary target given the evidence members of defendants’ group started a fist fight with Terry for some unidentified reason. The jury could have drawn the inference there was preexisting ill will between Terry, on the one hand, and defendants and their associates, on the other hand. Finally, the shooters could have targeted Sheila, Donisha and Shadonna for lying about Perry’ s whereabouts and trying to protect him

. . . . ” ( Rayford I , supra , B179017 .) We explained further, “ Based on the bullet impacts on the house, there was substantial evidence bullets were fired toward the front door of the house where victims were trying to r etreat.

11 Rayford argued there was not substantial evidence to support instruction of the jury on the kill zone theory of

concur rent intent; Glass argued the trial court erroneously instructed the jury on concurrent intent in a manner that allowed the jury to convict him without the specific intent to kill each of the 11 victims.13

The evidence shows a bullet hit Darrel as he was trying to get inside (or after he already had gotten back inside). Bullets also traveled through walls, placing those inside at risk. Kimberly was standing in an upstairs bedroom when a bullet gra zed her
back

. Despite Rayford’ s urging, we are not persuaded there was no kill zone based simply on the fact no one was killed or seriously injured. The manner in which the bullets were fired
indicates an intent to harm everyone in the vicinity. ” ( Rayfo rd I

, supra , B179017.) 12
We affirmed Rayford’s and Glass’s conviction s but vacated
the gang enhancements , concluding there was insufficient
evidence of the gangs’ “p rimary activities ” under section 186.22, subdivision ( f

), to support the gang allegation. Because the firearm enhancements were dependent on the gang enhancements, we vacated the firearm enhancement s as well

. We affirmed the judgments as modified.

F. Rayford’s Petition for Writ of Habeas Corpus
On May 29, 2015 R ayford filed a petition for writ of habeas corpus, in which he argued the trial court erred in instructing the jury on the kill zone theory of concurrent specific intent in light of

recent case authority and he received ineffective assistance of
counsel. On September 16 w e denied the petition “ without prejudice to ref

i ling in this court to the extent it is determined, in

12 We also rejected Glass’s contention the trial cour t ’ s use of CALJIC No. 8.66.1, in conjunction with CALJIC No. 3.01 on aider and abettor liability, was erroneous because it allowed the jury to convict him of 11 counts of attempted murder without finding he had the specific intent to kill each of the victims. ( Rayford I

, supra , B179017. )14

cases pending in the California Supreme Court, that [Rayford] may be entitled to relief.” T he Supreme Court granted review
but deferred taking action pending consideration and disposition
of the related issue in Canizales

. ( In re Rayford

, supra , S229536.) Following the Supreme Court ’s decision in Canizales

, supra , 7 Cal.5th 591 , on September 18, 2019 the Supreme Court
transferred the matter back to this court “with directions to

vacate [ this court’s ] September 16, 2015, order denying the petition for writ of habeas corpus and to reconsider the petition in light of [ Canizales ]

. ” Following supplemental brie fing , on November 13, 2019 we issued an order to show cause why relief should not be granted. T he People filed a return , and Rayford
filed a traverse.

G. Glass’s Petition for Writ of Habeas Corpus
On March 9, 2017 Glass filed a petition for a writ of habeas corpus in the Supreme Court. O n September 18, 2019 , “ [ i ] n conjunction with [the] court’s decision in Rayford on Habeas Corpus ,” the Supreme Court denied Glass’s petition for writ of habeas corpus “withou t prejudice to filing the petition in the Court of Appeal, Second Appellate District, for consideration of our opinion in [ Canizales ].” ( In re Glass

, supra , S240520. ) Glass
filed a petition for writ of habeas corpus with this court on
December 13, 2019. On December 18 w e issued an order to show

cause why relief should not be granted

. T he People filed a

return , and Glass filed a traverse.15 DISCUSSION

A. The Kill Zone Theory of Concurrent Intent To Kill “To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’” ( Canizales, supra , 7 Cal.5th at p. 602 ; accord, People v.
Covarrubias (2016) 1 Cal.5th 838, 890; People v. Perez (2010)

50 Cal.4th 222, 224 [“[S]hooting at a person or persons and thereby endangering their lives does not itself establish the requisite intent for the crime of attempted murder .” ] .) “[A]n intent to kill cannot be ‘transferred’ from one attempted murder
victim to another under the transferred intent doctrine.” ( Canizales , at p. 602; accord, People v. Bland, supra , 28 Cal.4th at

pp. 327

- 328 ( Bland ) .)
The Supreme Court first articulat ed the kill zone theory of attempted murder in Bland

, supra , 28 Cal.4th at pages 329

- 330, holding

, “‘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 i ntended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.

. . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.’” The Supreme
C ourt in Bland gave as examples of appropriate applications of
the kill zone theory where an assailant places a bomb on a commercial plane intending to harm a primary targe t on the plane by killing all the passengers and where a defendant attacks a group of people by using “‘automatic weapon fire or an explosive16

device devastating enough to kill everyone in the group.’” ( Id. at

p. 330

, quoting Ford v. State ( 199 3 ) 330 Md. 682

, 717 [625 A.2d

984

, 1000

- 1001 ] .) In these scenarios, “‘[t]he defendant has intentionally created a “kill zone” to ensure the death of his 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.’” ( Bland , at p. 330 .)
In Bland , the court found that where the defendant and a second shooter fired a flurry of bullets at a fleeing car in order to kill the driver, injuring two passengers, the evid ence “virtually compels” an inference the defendant created a kill zone that would support attempted murder convictions as to both passengers. ( Bland , supra , 28 Cal.4th at pp. 330

- 331, 333.) By contrast, in People v. Perez

, supra , 50 Cal.4th at p age 232

, the Supreme Court concluded the defendant had not created a kill zone where he fired a single shot from a moving car at a group of eight individuals 60 feet away, therefore supporting only one, not eight, counts of attempted murder. The Supreme C our t explained , “‘ [A] shooter may be convicted of multiple counts of attempted murder on a “kill zone” theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the “kill zone”) as the means of accomplishing the killing of that victim.’” ( I

bi d

. ; see People v. Stone (2009 ) 46 Cal.4th 131, 135 [trial court erred by instructing on kill zone theory where
defendant shot a single bullet at alleged victim standing in g roup of 10 rival gang members 60 feet away from defendant] .) The Supreme Court revisited the kill zone theory in
Canizales , supra , 7 Cal.5th 591 , in which it narrowed application
of the doctrine . The Supreme Court held

, “ [T] he kill zone theory17

for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the
defenda nt used, 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. [¶] In determining the defendant ’ s intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the
number of sh ots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only
conscious disre gard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory. ” ( Id. at p. 607.)
The Canizales court cautioned , “[W] e anticipate there will be relatively few cases in which the theory will be applicabl e and an instruction appropriate. Trial courts should tread carefully when the prosecution proposes to rely on such a theory, and should provide an instruction to the jury only in those cases where the court concludes there is sufficient evidence to suppo rt a jury determination that the only reasonable inference from the18

circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insu fficient to support a kill zone instruction. ” ( Canizales

, supra , 7 Cal.5th at

p. 60 8 .)
The Supreme Court clarified that “[w]hen the kill zone theory is used to support an inference that the defendant concurrently intended to kill a nontargeted victim

. . . evidence of a primary target is required.” ( Canizales, supra , 7 Cal.5th at

p. 608

. ) The Canizales court cited approvingly to the language in People v. Medina (2019) 33 Cal.App. 5th 146, 155, that “‘[w]ithout a primary target, there cannot be concurrent intent because there is no primary intent to kill as to which the intent to kill others
could be concurrent

. ’” ( Canizales , at p. 609.) Although t he defendant s in Canizales fired five shots from

a sem iautomatic nine

- millimeter gun at a group that included a rival gang member ( Denzell Pride) with whom one of the
defendant s had engaged in a verbal altercation earlier that day,
the defendants were not “in close proximity to the area surrounding their intended target

, ” but instead were positioned 100 to 160 feet away from a block party on a wide city street

, and the bullets were “‘going everywhere’” as Pride and fellow gang
member Travion Bolden ran away after the first shot was fired. ( Canizales , supra , 7 Cal.5th at pp. 610

- 611 .) T he Canizales court
concluded the evidence was not sufficient to allow the jury to find
the defendants intended to create a zone of fatal harm around
Pride

, and it reversed the defendants’ convictions of the attempted murder of Bolden

. ( Id

. at pp. 611, 615 .) The Supreme
Co urt distinguished the se facts from those in other cases in
which “the defendants opened fire while in close proximity to the19

area surrounding their intended target.” ( Id . at pp. 610

- 611; see Bland, supra , 28 Cal.4th at p. 318 [ defendant fired flurry of
bullets directly into vehicle]; People v. Vang (2001)

87 Cal.App. 4t h 554, 564 [defendants sprayed 50 or more bullets from high

- powered

, “wall

- piercing” weapons at two separate apartment buildings] ; Washington v. U.S. (D.C. 2015) 111 A.3d

1 6, 24 [defendant fired 10 shots at four people standing in close proxim ity to each other and 21 feet from defendant, hitting three
of the group ] .)

B. Canizales Ha s Retroactive Effect The People contend the Supreme Court’s decision in
Canizales does not apply retroactively to final cases, such as Rayford’s and Glass’s

. We conclude it does

. Generally, “[a] writ of habeas corpus will not issue for a claim that was raised and rejected on appeal. ” ( In re Martinez (2017) 3 Cal.5th 1216, 1222 ( Martinez ) ; accord, In re Reno (2012)

55 Cal.4th 428, 476 [“ legal claims that have prev iously been raised and rejected on direct appeal ordinarily cannot be reraised in a collateral attack by filing a petition for a writ of habeas

corpus ”] ; In re Waltreus (1965) 62 Cal.2d 218, 225 .) An exception
to the rule applies “ ‘ when there has been a c hange in the law affecting the petitioner. ’ ” ( Martinez

, at p. 1222 ; accord, In re
Harris (1993) 5 Cal.4th 813, 841 [ “ a petitioner [may] raise in a petition for writ of habeas corpus an issue previously rejected on direct appeal when there has been a change in the law affecting the petitioner ”].) “ To trigger this exception, the change in the law
must have retroactive effect. ” ( Martinez

, at p. 1222 ; accord, In re Lopez (2016) 246 Cal.App. 4th 350, 357

- 359 ( Lopez ) .) Because the
federal and state courts have applied a number of tests to20

determine whether a change in law applies retroactively, we review the historical landscape of the retroactivity jurisprudence

.

1. The federal retroactivity tests under Linkletter and Teague Before the United States Supreme Court’s decision in
Linkletter v. Walker (1965) 381 U.S. 618, 629 ( Linkletter )

, both
the common law and the United States Supreme Court

“ ‘ recognized a general rule of retrospective effect for the
constitutional decisions of [the United States Supreme] Court

. . . subject to [certain] limited exceptions

. ’ ” ( U nited States v. Johnson (1982) 457 U.S. 537, 542 ; see Linkletter , at p. 62 2 [ “At common law there was no authority for the proposition that judicial decisions made law only for the future.” ]

. )
Linkletter considered whether the rule announced in Mapp
v. Ohio (1961) 367 U.S. 643, applying the exclusionary rule for
evidence seized in violation of the Fourth Amendment to state

court pro s ecutions

, should operate retroacti vely to cases that
were final prior to Mapp

. ( Linkletter , supra , 381 U.S. at p. 6 1 9.)
Linkletter directed courts to “weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ( Id. at p. 629.) T he Linkletter

court weighed these factors and concluded Mapp did not apply retroactively on habeas corpus review , observing the purpose o f Mapp ’s application of the exclusionary rule to the states t o deter illegal police action w ould not be served by retroactive application. ( Linkletter

, at pp. 636

- 637 .)
For the following 20 years

, the United States Supreme
Court applied Linkletter ’s test to determine the re tro activity of21

new decisional law to final judgment s of conviction. ( See, e.g.

, Allen v. Hardy (1986) 478 U.S. 255, 258

- 2 60 [ conclud ing Batson v. Kentucky (1986) 476 U.S. 79 , which established a three

- step inquiry for determining whether the prosecution’s use of peremptory challenges violated the defendant’s constitutional rights

, did not apply retroactively to final cases ] ; Stovall v. Denno (1967) 388 U.S. 293, 297 [ den ying retroactivity of United States v.
Wade (1967) 388 U.S. 218 and Gilbert v. California (1967)

388 U.S. 263, which held a defendant has a right to counsel during postindictment lineup for identification purposes]

. )
In Teague v. Lane (1989) 489 U.S. 288, 302

- 304 ( Teague )

, in a plurality decision authored by Justice O’Connor, the United States Supreme Court abandoned the Linkletter test for retroactivity

. ( Teague

, at pp. 302

- 304 , 310.) The Teague c ourt explained as to cases on collateral review

, “ Unless t hey fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced. ” ( Id. at

p. 310.) The court articulated two exceptions to r etroactivity

. First, “ a new rule should be applied retroactively if it places

‘ certain kinds of primary, private individual conduct beyond the power of the criminal law

- making authority to proscribe

. . . .’ ” ( Id. at p. 311.) Second, a new rule should be applied retroactively
if it is a “ watershed rule [] of criminal procedure ” implicating the
f undamental fairness and accuracy of the proceeding

. ( Id. at

pp. 311

- 312 .) A majority of the United States Supreme Court adopted the Teague rule in Saffle v. Parks (1990) 494 U.S. 484 and clarified Teague ’s first exception applied to n ew substantive rules. ( Saffle

, at p. 494; accord, Whorton v. Bockting (2007) 549 U.S. 406, 41622

[ “ A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a ‘ “ watershed rul[e] of criminal procedure ” implicating the fundamental fairness and accuracy of the criminal proceeding. ’” ] .) The United States Supreme Court has since applied the Teague test to federal
substantive and procedural rules on collateral review. (S ee , e.g., Montgomery v. Louisiana (2016) 577 U.S. ___ [ 136 S.Ct. 718, 732] [ concluding Miller v. Alabama (2012) 567 U.S. 460, which held the Eighth Amendment prohibits mandatory life sentences without parole fo r juvenile offenders, applie s retroactively on
collateral review under Teague because it is a substantive rule, explaining a substantive rule “fo rbids ‘ criminal punishment of certain primary conduct ’ or prohibits ‘ a certain category of punishment for a class of defendants because of their status or
offense ’”] ; Schriro v. Summerlin (2004) 542 U.S. 348, 35 1

- 352 [ concluding the requirement in Ring v. Arizona ( 2002 ) 536 U.S.

584 that aggravating factor s be proved to a jury instead of a judge does not apply r etroactively to final cases because it is a procedural rule that does not fall within Teague ’s exception for a watershed rule of criminal procedure].) Further, although Teague “ limits the kinds of constitutional
violations that will entitle an individual t o relief on federal habeas, [it] does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed ‘ nonretroactive ’
under Teague

. ” ( Danforth v. Minnesota (2008) 552 U.S. 264, 282 ; accord, In re Gomez (2009) 45 Cal.4th 650, 655

, fn. 3 [ California
courts are “‘ free to give greater retroactive impact to a decision than the federal courts choose to give

. ’ ”] .)23 2. California retroactivity analys is under Johnson and
M utch
In In re Johnson (1970) 3 Cal.3d 404 , 410 ( Johnson ), the California Supreme Court applied a modified version of the
Linkletter test 13 to conclude the United States Supreme Court’s
decision in Leary v. United States (1969) 395 U.S. 6 ( Leary )

, which hel d a defendant’s timely invocation of the privilege against self

- incrimination constituted a complete defense to a prosecution for failure to pay a federal marijuana transfer tax, applied retroactively on collateral review . The defendant had been convicted of two counts of selling marijuana with two prior convictions, one of which was a conviction under the federal
statute at issue in Leary . The Johnson court explained, “ The retrospective effect of a law

- making opinion is to be determined by ‘ “ (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. ” ’” ( Johnson

, at

p. 410 .) After surveying United States Supreme Court decisions on retroactivity, the court reasoned, “F ully retroactive decisions

are [those] vindicating a right which is essential to a reliable determination of whether an accused should suffer a penal
sanction

. ” ( Id. at pp. 411

- 41 2

. ) The court added, “[T] he more directly the new rule in question serves to preclude the conviction of innocent persons, the mo re likely it is that the rule will be afforded retrospective application. ” ( Id. at p. 413

. ) The Johnson court emphasized that under Leary , persons who timely assert

13 The Johnson court adopted the mo dified Linkletter test as set forth in Stovall v. Denno , supra , 388 U.S. at page 29 7. ( Johnson, supra , 3 Cal.3d at p. 410.)24

the Fifth Amendment as a defense to the federal statute “are
innocent as a matter of law. ” ( Johnson , at p. 416.) Although the California Supreme Court in Johnson
considered whether the Leary court’s holding grounded in federal constitutional law applied retroactively, California courts have applied Johnson ’s tripartite test to determine the retroactivity of judicial decisions interpreting federal and California law . (See,

e.g., In re Brown ( 2020) 45 Cal.App. 5th 699, 715, 722 [applying
Johnson to conclude People v. Gallardo (2017) 4 Cal.5th 120, which held a trial court may not make factual findings beyond those established by the conviction to increase a sentence, applie d retroactively to fin al cases]; In re Milton (2019) 42 Cal.App. 5th 977, 989, review granted Mar. 11, 2020, S259954 [applying
Johnson and Teague to conclude Gallardo did not apply retroactively to final cases]; In re Thomas (2018) 30 Cal.App. 5th 744, 753

- 761 [concluding People v. Sanchez (2016) 63 Cal.4th 665,
which held an expert witness ’s out

- of

- court testimonial
statements about case

- specific facts violates the confrontation clause, did not apply retroactively under Johnson , declining to apply Teague as not binding on state habeas corpus review ]; In re
Ruedas (2018) 23 Cal.App. 5th 777, 793

- 803 [concluding Sanchez did not apply retroactively under Johnson or Teague ]; In re
Hansen (2014) 227 Cal.App. 4th 906, 919 ( Hansen ) [giving
retroactive effect on habeas corpus review to new rule enunciated
in People v. Chun (2009) 45 Cal.4th 1172 ( Chun ) that shooting at inhabited dwelling could not support second degree felony

murder conviction

, because Chun preclude d the conviction of25

innocent persons by narrowing the class of conduc t that may constitute second degree murder].) 14 A year after deciding Johnson , the California Supreme
Court in People v. Mutch (1971) 4 Cal.3d 389, 394 ( Mutch )
confronted the issue of retroactivity with respect to a change in
the judicial interpretation of California statutory law

. Specifically, i n People v. Daniels (1969) 71 Cal.2d 1119 ( Daniels )

, the California Supreme Court h eld movement of a victim in the course of a robbery that does not substantially increase the risk
of harm above that necessary to commit the robbery does not satisfy the asportation element of aggravated kidnapping

, thereby overruling its decision in People v . Chessman (1951)

38 Cal.2d 166 . ( Daniels , at p. 1139.)
T he Mutch court concluded the Daniels decision applied retroactively to cases that were final , explaining “ ‘ a defendant is entitled to habeas corpus if there is no material dispute as to the
facts re lating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct. ’ ” ( Mutch , supra , 4 Cal.3d at p. 396 ; accord, Woosley v. State of California (1992) 3 Cal.4th 758, 794 ( Woosley ) [giving retroactive effect to holding that class action claims for refund of state
vehicle license fees and use tax es were not authorized under state

14 Most cases have applied the Johnson test to procedural rules, a lthough the Court of Appeal in Hans e n applied Johnson to Chun ’s in terpretation of California substantive law

. ( Hans e n, supra , 227 Cal.App. 4th at p. 919 , fn. 3 [observing the Johnson test “appears tailored to procedural, and not substantive, changes in criminal law” ] .) The court declined to apply the retroactivity test established in People v. Mutch (1971) 4 Cal.3d 389, applicable to substantive changes in the law, because the partie s did not brief the issue. ( Hansen , at p. 919, fn. 3.)26

law ] ; In re Miller (2017) 14 Cal.App. 5th 960, 979 [ California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th
788 and People v. Clark (2016) 63 Cal.4th 522 , which limited the
circumstances under which an aider and abettor to a murder under the felony

- murder doctrine may be sentenced to life in prison w ithout the possibility of parole, applied retroactively
under Mutch because the decisions “did not create new law; they simply state d what section 190.2, subdivision (d) [defining special circumstance murder] has always meant”] .)
In finding Daniels retroac tive, t he Mutch c ourt observed
the decision “ did not overturn a judge

- made rule of common law

, ”
but rather , it “ recognized a statutory rule

. . . to which courts had not previously given appropriate effect. ” ( Mutch

, supra , 4 Cal.3d

at p. 394 .) The California Supreme Court in Woosley later
described the Mutch decision as one not involving a new rule of law because it gave effect “ ‘ to a statutory r ule that the courts had theretofore misconstrued.’” ( Woosley

, supra , 3 Cal.4th at p. 794 ;

a ccord, Hansen , supra , 227 Cal.App. 4th at p. 91 6 [ Mutch determined its “new interpretation of the aggravated kidnapping statute was not a change in the law at all ” ] .) The Woo sl ey c ourt explained, “ ‘ Whenever a decision undertakes to vindicate the original meaning of an enactment, putting into effect the policy intended from its inception, retroactive application is essential to accomplish that aim. ’ ” ( Woo sl ey , at p. 794. )
T he Mutch court declined to “undertake the often perilous task of applying

. . . the test of ‘retroactivity’ developed in a well

known serie s of decisions of the United States Supreme Court,” citing to Linkletter and other United States Supreme Court decisions applying the Linkletter test. ( Mutch, supra

, 4 Cal.3d at

pp. 394

- 395.) The court distinguished those cases as “primarily27

concerned with such matters as the control of improper police practices,” exclusion of tainted evidence, and the “reform of procedural rules affecting the reliability of the fact

- finding process.” ( Ibid .)

3. The California Supreme Court’s decision in Martin ez Most recently, the California Supreme Court in Martinez

, supra , 3 Cal.5th at page 1222 considered whether its decision in People v. Chiu (2014) 59 Cal.4th 15 5 ( Chiu ) applied retroactive ly
on collateral review

. T he Supreme Court i n Chiu held the natural and probable consequences theory of aider and abettor liability cannot be relied on to convict a defendant of first degree premeditated murder. ( Chiu

, at p. 167 .) The Martinez court
concluded Chiu had retroactive effect, reason ing “ a change i n the criminal law will be given retroactive effect when a rule is substantive rather than procedural (i.e., it alters the range of conduct or the class of persons that the law punishes, or it modifies the elements of the offense) or when a judicial decisi on undertakes to vindicate the original meaning of the statute. ” ( Martinez

, at p. 1222 .) In so holding , the Supreme Court implicitly applied the Teague and Mutch retroactivity tests, cit ing with approval to t he Court of Appeal ’s decision in Lopez

, supra , 246 Cal.App. 4th at pages 35 7

- 359 , which applied Teague and
Mutch to conclude Chiu was retroactive on habeas corpus review

. ( Martinez

, at p. 1222 .) 15

15 Although the Martinez court indirectly referred to the Mutch analysis in articulating the standard for retroactivity (as when a judicial decision undertakes to vindicate the original meaning of the statute), the Supreme Court distinguished Mutch28 Applying Teague

, 16 the Lopez court reasoned, “ The Chiu
decision set forth a new rule of substantive law by altering the range of conduct for which a defendant may be tried and convicted of first degree murder. ” ( Lopez , supra , 246 Cal.App. 4th

at p. 358 .) The Lopez court alternatively found the Chiu decision
retroactive under Mutch , reasoning

, “ By limiting the scope of aider and abettor liability in the commission of murder, the court
in Chiu was, in effect, engaging in statutory interpretation and declaring the Legislature ’ s intent just as the court in Mutch did for the aggravated kidnapping statute. ” ( Lopez , at p. 359 .) The Lopez court discussed but did not apply the tripartite Johnson

test
, describing it as the “ test for determining retroactivity of judicial opinions involving questions of procedure. ” ( Lopez , at

p. 359

, fn. 2.)

4. Canizales is retroactive on habeas corpus review
unde r federal and state retroactivity analyses We apply the approach taken by Martinez and Lopez and consider the retroactivity of Canizales under Mutch and Teague

. Like Mutch (and Martinez )

, the holding in Canizales rests on an interpretation of substantive California criminal law. “ In

on the basis the defendant there was actually innocent of kidnapping because the statute did not proscribe his conduct, whereas the defendant in Martinez could be retried for first degree murder consistent wi th Chiu under a different theory of aider and abettor liability. ( Martinez, supra , 3 C al.5th at

pp. 1223

- 1224 .)

16 The Lopez court cited to Schriro v. Summerlin , supra , 542 U.S. at pages 35 1

- 354 for its Teague analysis. ( Lopez, supra

, 246 Cal.App.4th at p. 35 7 .)29

California all crimes are statutory and there are no common law
crimes. Only the Legislature and not the courts may make
conduct criminal. ” ( In re Brown (197 3) 9 Cal.3d 612, 624 ; accord, Lopez, supra

, 246 Cal.App. 4th at p. 359 [“ Murder, as all crimes in California, is statutory, as are the degrees of murder and the punishment. ”] ; see § 6 [ “ No act or omission

. . . is criminal or punishable, except as prescribed or authorized by this
code

. . . .”] .) A s such, a ttempted willful, deliberate, and premeditated murder is a statutor ily defined offense

. ( § § 187 [ defining murder ]

, 188 [ defining malice ]

, 664 [ criminalizing attempts to commit a crime ]

. ) Further, as in Mutch and Martinez , the Canizales decision “undertakes to vindicate the original meaning of the statute.” ( Martinez, supra , 3 Cal.5th at p. 1222.) As discussed, the Supreme Court in Bland endorsed the kill zone theory of
concurrent intent to kill to prove attempted premeditated
murder. ( Bland , supra , 28 Cal.4th at pp. 329

- 330.) But in
Canizales , the Supreme Court limited application of th e kill zone theory to correct the overbroad application of the theory by
several C ourts of A ppeal

. ( Canizales, supra , 7 Cal.5th at pp. 602,
607 [court “

granted review in light of the conflict in the Courts of Appeal regarding the evidentiary basis for applying, and instructing on, the kil l zone theory for establishing the intent to kill element of attempted murder”]; People v. Cerda (2020)

45 Cal.App. 5th 1 , 4
, review granted May 13, 2020, S2 60915 [ Canizales “limited the application of the kill zone theory”].) By limiting the scope of liability for attempted premeditated murder under the theory of c onc urrent intent to kill , the California Supreme Court in Canizales was declaring the Legislature’s
intent , as the Supreme C ourt had done in Chiu as to aider and30

abet ter liability and in Mutch as to the aggravated kidnapping

statute. ( See Lopez, supra

, 246 Cal.App. 4th at p. 359

. ) And , as in
Chiu , the Canizales court resolved an outstanding issue of law without expressly overturning past precedent or disapproving specific decisions of the Courts of Appeal. (See Chiu , supra , 59 Cal.4th at p. 163.) Indeed, the Canizales court described its holding as “consistent with Bland

. ” ( Canizales , at p. 607.)
We reach the same conclusion under Teague because the
rule in Canizales is substantive. “ A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes” or “modifies the elements of an
offense .” ( Schriro v. Summerlin , supra , 542 U.S. at p p. 353

- 354 ; accord, Montgomery v. Louisiana , supra , 577 U.S. at p.

___ [ 136 S.Ct. at p. 7 33]. ) Similar to Chiu , the Canizales court altered the range of conduct for which a defendant may be tried and convicted of attempted premeditated murder by holding trial courts should only instruct the jury on the kill zone theory of
concurrent intent where “there is sufficient evidence to s upport a jury determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm .” ( Canizales

, supra , 7 Cal.5th

at p. 60 8 ; s ee Lopez, supra , 246 Cal.App. 4th at p. 358 ; cf. In re
Milton , supra , 42 Cal.App. 5th at pp. 989 , 992 [ concluding the rule
articulated in People v. Gallardo , supra , 4 Cal.5th 120 is procedural under Teague ] ; In re Ruedas , supra , 23 Cal.App. 5th at

pp. 793 , 798 [concluding the rule articulated in People v. Sanchez

, supra , 63 Cal.4th 665 is procedural under Teague ] .) Although we focus on the Mutch and Teague retroactivity
tests, we note Johnso n ’s tripartite test for retroactivity al so militates strongly in favor of retroactiv ity because the purpose of31

the rule announced in Canizales

, of ensuring the reliability of a conviction for attempted premeditated murder

, is not collateral to the guilt or innocence of a defendant ( Johnson

, supra , 3 Cal.3d at

p. 415), but rather, ensures the reliability of an attempted premeditated murder conviction by requiring the defendant have acted with the specific intent to kill ever yone in the kill zone. ( Canizales, supra , 7 Cal.5th at p. 597 ; see Hansen , supra , 227 Cal.App. 4th at p. 919 [ “ The purpose of Chun was to separate those actions that are punishable as second degree murder from
those that are not. ” ] .) Where the purpose of the rule strongly favors retroactivity, “this factor often is conclusive even if there is a considerable burden on the administration of justice.” ( Johnson

, at p. 416.) 17 The People also contend Canizales expressly made its holding prospective only by discussing its application in “future cases” and instructing trial courts to exercise caution applying the doctrine “going forward

. ” ( Canizales, supra , 7 Cal.5th at

17 The People’s reliance on P eople v. Guerra (1984) 37 Cal.3d 385 is misplaced

. The Guerra court addressed on direct appeal whether to make “ an exception to ‘the ordinary assumption of retrospective operation.’” ( Guerra

, at p. 401.) The c ourt explained w here there is no prior rule to the contrary, “the new rule applies in all cases not yet final.” ( Id . at p. 399.) This
cate gory includes cases “ ‘ resolv[ing] a conflict between lower court decisions, or address[ing] an issue not previously presented to the courts. ’ ” ( Id. at p. 400.) As the Guerra c ourt reasoned, in th o se cases “there was no clear rule on which anyone could have justifiably relied.” ( Ibid. ) The decision in Canizales falls squarely within the class of decisions articulating a new rule to resolve a conflict in the Courts of Appeal where there was no prior controlling rule to the contrary.32

pp. 606, 608.) In so arguing, the People rely on Sumner v.
Workers’ Comp. Appeals Bd. (19 83) 33 Cal.3d 965, Isbell v. County of Sonoma (1978) 21 Cal.3d 61 , and Li v. Yellow Cab Co

. (1975) 13 Cal.3d 804 . But in each of those cases the Supreme
C ourt express ly disclaim ed retroactiv e effect of the change in law, concluding specific policy concern s weighed in favor of prospective application only

. (See Sumner , at p. 972 [“ We make this declaration prospective

— from and after the date our opinion
becomes final

— so as to avoid unfairness to parties who have relied upon the presumed validity of the present [claims release form]

, and the burden upon the workers’ compensation system which would result from retroactive application. ”]; Isbell , at p. 75 [“ our decision s hould be given a limited retroactive application to permit any judgment debtor to apply for a hearing challenging the validity of the waiver in his confession of judgment ”] ; Li , at

p. 829 [“ [W] e hold that the present opinion shall be applicable to
all case s in which trial has not begun before the date this decision becomes final in this court, but that it shall not be applicable to any case in whic h trial began before that date

. . . . ”].) Canizales ’s guidance to trial courts stands in sharp c ontrast to th ese express
statements rejecting any retroactiv e effect

. Further

, the Supreme Court ’s transfer of Rayford’s petition to this court and
denial of Glass’s petition without prejudice to filing a petition in
th is court for consideration of the Canizales decision show the
Canizales court did not intend to resolve the question of retroactivity

. ( In re Rayford

, supra , S229536 ; In re Glass

, supra , S240520. )33

C. Under Canizale s , the Evidence at Trial Was Not Sufficient
T o Instruct the Jury on the Kill Zone Theory Rayford and Glass contend under Canizales the circumstances of the shooting did not support the trial court instructing the jury on the kill zone theory. Rather, they assert
the only reasonable inference supported by the evidence is that the shooters fired on the house “to scare the Lair family, or send a message to Perry, or [as] a demonstration of force or to stop the fistfight

, ” thus lacking the specific intent to kill the group assembled on the lawn and in the house. We agree. As discussed, in determining whether “ there is sufficient evidence from which the jury could find that the only reasonable
inference is that the defendant intended to kill (not merely to endanger or harm) everyone in the zone of fatal harm ,” we consider the circumstances surrounding the shooting, including “the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target.” ( Canizales

, supra , 7 Cal.5th at pp. 597, 607 .)
T he People argue the circumstances of the shooting here support a reasonable inference the shooters intended to kill everyone in
the zone of fatal harm around Sheila

. As the People point out, Glass stood facing Sheila about 33 feet away, while Fat Man stood to her left and Rayford to her right. A series of eight bullets struck the house in an area surrounding Sheila and the
others on the grass , wh o had limited means of escape as they
funneled into the entrance of the house. One bullet struck
Darrel. The gunfire that traveled from east to west was powerful enough to pierce multiple walls within the house. These facts supported our decision in Ray ford I

.34 However, other circumstances support a reasonable
alternative inference more favorable to Rayford and Glass , that
the shooters acted not with the specific intent to kill everyone in
and in front of the house, but with conscious disregard of the risk
Sheila and her family and neighbors might be seriously injured
or kille d. Each shooter shot at most four bullets at the house

— four from east to west (from where Fat Man was standing) and four from south to north (from where Glass was standing). Glass was standing in front of Sheila, but he shot “directly towards the house,” not at her. He also fired at the front window where no one was standing, but a cousin was looking out. Rayford only
shot into the air. Neither Sheila nor Donisha testified any shooter targeted specific victims. The eight bullets that were
recovered were not fired at a specific location, instead striking
the house from the window to the right of the front door to the
wood to the left of the door

. Although the weapons had sufficient force to pierce the walls of the house, t here was no evidence the

guns were rapid

- firing semiautomatic or automatic weapons.
These circumstances are markedly different from those in People v. Cerda , supra , 45 Cal.App. 5th at pages 16

- 17 , in which the Court of Appeal subsequent to Canizales upheld a kill zone instruction. There, the shooter fired on two houses using an AK

47 assault rifle to fire “ up to four times the velocity of handgun
ammunition ” into the houses, includ ing firing at least 16 shots at
one house and multiple shots at second house . ( Cerda

, at p. 7 ;

see People v. Vang

, supra , 87 Cal.App. 4th 554, 558, 564 [ evidence
shooters used “an AK series assault rifle” and shotgun to fire 50
shots at front of duplex with most of bullets directed at primary target’s unit created reasonable inference defendants intended to kill everyone inside] ; cf. People v. Thompkins (2020)35

48 Cal.App.5th 676, 688

- 689

, 705

- 706 [trial court erred in giving
kill zone instruction where shooter fired 10 shots into crowd of

10

- 20 customers in restaurant, killing two and wounding five people, but there was no intended target]; People v. Mariscal (2020) 47 Cal.App.5th 129 , 139 [trial court erred in giving kill
zone instruction where defendant killed intended target, then shot at four of target’s friends, but error was harmless beyond a reasonable doubt] .) 18 Although egress from the fray here was more constricted than the open street in Canizales , the house’s front yard and door provided maneuvering space for those congregated to avoid fatal injury, and for all but Darrel and Kimberly to avoid physical injury of any kind. (Cf. Bland , supra , 28 Cal.4th at p. 331 [ kill zone instruction sup ported where “ defendant and his cohort fired a flurry of bullets at [primary target’s] fleeing car

, ” creating a kill

zone around the car’s other passengers].) While the
determination whether to instruct on the kill zone “ does not turn
on the effectiveness or i neffectiveness of the defendant’ s chosen
method of attack ,” whether an inference can reasonably be drawn

“ is at least informed by evidence ” the potential primary targets

— Sheila, Donisha, and Terry ( like Pride and Bolden in Canizales )

were not hit by any of the bullets . ( Canizales, supra , 7 Cal.5th at

p. 611 .) Although a bullet struck Darrel, trial testimony did not
reveal where Darrel was standing when he was struck. Like Kimberly in the upstairs bedroom, the evidence is equivocal
whether Da rrel came within a zone of fatal harm or w as simply

18 The Supreme Court in Canizales cited the holding in People v. Vang approvingly. ( Canizales, supra , 7 Cal.5th at p. 610.)36

hit by a bullet fired into the house with conscious disregard of the
risk of seriously injuring or killing those inside or on the grass

. We also consider the context of the incident. After Glass argued with Perry, he and Rayford went to Sheila’s house looking to fight him . When Sheila told Glass that Perry was not home, De’Antwan accosted Terry

, and the shooting began. Yet p rior to the incident, Glass was “like a part of [Sheila’s] family

, ” and
Glass and Rayford sometimes visited Sheila’s house together. In light of t hese facts, coupled with the method of force employed (four to five bullets fired by each shooter randomly at the front of
the house )

, there is not sufficient evidence from which the jury
could find the only reasonable inference is that the shooters intended to kill everyone in a zone of fatal harm. ( Canizales

, supra , 7 Cal.5th at pp. 597, 607.) Rat her, a reasonable
alternative inference is that the shooters fired on the house to provoke Perry, whom they believed was inside, or to punish
Sheila and her family for protecting Perry, with conscious disregard of the risk Sheila and the others inside and in front of
the house would be seriously injured or kille d. Glass’s statement to Kimberly after the shooting, “That’s what you bitches get,” is as consistent with a specific intent to kill as with an intent to punish Sheila and her family for hiding Perry

, with conscious disregard of the risk of fatal harm or serious injury to Sheila and her family and neighbors

. Under these circumstances the trial court erred in instructing the jury on the kill zone theory. ( Id

. at

p. 608.)

D. The Error Was Prejudicial
As discussed, the trial court instructed the jury on two
theories of liability

— that the defendants intended to k ill each37

victim as a primary target
, and they intended to kill each victim

as a person in the kill zone. The People contend even if the
evidence was not sufficient to support the trial court’s instruction

on the kill zone theory, any error was harmless be cause the kill

zone instruction was not misleading

, and even if the theory did

not apply, the jury was also properly instructed on a correct legal theory requiring intent to kill the primary target

. We agree with Rayford and Glass the trial court instructed the jury on a legally
inade q uate theory of the kill zone, and we therefore consider
whether the error in instructing the jury was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S.

18 ( Chapman ). It was not.
The California Supreme Court in Canizales distinguished
between an instruction on an alternative theory that is “not factually supported by the evidence adduced at trial,” and one that is “ ‘“ contrary to law ,” or , phrased slightly differently, cases involving a “ legally inadequate theory ”

. . . .’” ( Canizales

, supra , 7 Cal.5th at p. 613, quoting People v. Guiton (1993) 4 Cal.4th

1116

, 1128.) The Canizales court found the instructi on given to
the jury on the kill zone was legally inadequate because it provided “no adequate definition to enable the jury to determine
whether the theory was properly applicable.” ( Canizales

, at

p

. 615 .) The Supreme Court left for another day whether
instruction of the jury on a legally inadequate theory is subject to
harmless error review under Chapman

, or whether “ an even

more stringent test ” applie s

. ( Canizales

, at p. 615 .) The Supreme Court in People v. Aledamat ( 2019) 8 Cal.5th 1
, 13

, has

now resolved that question, holding “ alternative

- theory error is subject to the more general Chapman harmless error test. The reviewing court must reverse the conviction unless, after38

examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error

was harmless beyond a reasonable doubt. ” In contrast
, factually

erroneous theories do not require reversal unless the record affirmatively indicates the verdict actually rests on the inadequa te ground

. ( Id. at p. 7 ; Guiton

, at p. 1128.) As t he Supreme C ourt explained, “ W hen the theory is legally

erroneous

— i.e., of a kind the jury is not equipped to detect

— a higher standard must be met for the error to be found harmless.

‘ These different tests reflect the view that jurors are “ well equipped ” to sort factually valid from invalid theories, but ill equipped to sort legally valid from invalid theories. ’ ” ( Aledamat

, at p. 7 .)

“ In determining whether a legally inadequate theory was conveyed to the jury here, w e must ask whether there is a

‘ “ reasonable likelihood ”’ that the jury understood the kill zone theory in a legally impermissible manner. [Citations.] In doing

s o, we consider the instructions provided to the jury an d counsel ’ s argument to the jury. ” ( Canizales

, supra , 7 Cal.5th at p. 613

. )
The Canizales court observed the instruction given to the jury did
not define a kill zone “[b]eyond its reference to a ‘particular zone of harm,’” and the prosecutor “substantially aggravated the potential for confusion” by defining the kill zone overbroadly “as an area in which people ‘can get killed’ or are in a ‘zone of fire.’” ( I d. at pp. 613, 614.) The court concluded the “ error was one of federal constitutional magnitude. ” ( Id. at p. 615.) Here, as in Canizales

, the trial court instructed the jury
that to convict Rayford and Glass it had to find the shooters took
“a direct but ineffectual act

. . . towards killing another human being” and had “a specific intent to kill unlawfully another39

human being.” The court instructed further that “[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.’ ” As in Canizales , the instruction
failed to define the term “kill zone

, ” o ther than its reference to “a particular zone of risk.” ( See Canizales, supra , 7 Cal.5th at

p. 613.) The remainder of the instruction did not remedy this
defect . It stated, “ 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 ensure harm to the primary victim by harming everyone in that victim’s vicinity .” By defining the kill zone as a “ zone of risk, ” t he
instruction erroneously allowed the jury to convict Rayford and
Glass if the evidence showed they intended to subject individuals
in the “zone of risk” to a risk of harm, regardless of whether they
intended to kill the individuals in order to kill the primary
target. 19 (See People v. McCloud (2012) 211 Cal.App. 4th 788,

802 , fn. 7 [“By referring repeatedly to a ‘zone of risk,’ [CALJIC
No. 8.66.1] suggests to the jury that a defendant can create a kill zone merely by subjecting individuals other than the primary
target t o a risk of fatal injury.

. . . [T] hat is not correct. ” ] .)

19 The instruction also failed to require the shooter have a primary target for the kill zone theory to apply. This court’s statement in Rayford I

, that “[s]imply because Bland involved a single primary target does not necessarily mean the theory of concurrent intent only applies when a primary target is identified

, ” is an incorrect statement of law in light of Canizales

. ( Rayford I, supra

, B179017 ; see Canizales, supra , 7 Cal.5th at

p. 608 [“ When the kill zone the ory is used to support an inference that the defendant concurrently intended to kill a nontargeted victim, however, evidence of a primary target is required. ”]. )40 The prosecutor’s closing argument compounded th e error

. T he prosecutor described the theory of concurrent intent as when
the defendant “ mainly intend [s] to kill one [person ], but at the

same time, [he] can be found guilty of intending to kill everyone in what’s known as a kill zone, a zone of risk. ” The prosecutor continued, “The idea was whether Rayford and Glass intended to ensure harm to their intended victim in a way that exposed

everyone in their vicinity to harm.” The prosecutor added that Perry was not a “primary victim” because he was not in the house, but instead the primary victims were Sheila, Darrel

, and Kimberly because , as to the latter two

, “ they were struck by gunfire.” Furth er, the prosecutor argued the kill zone was not limited to the front door area but encompassed “the majority of the living space in this house.” By referring to a “zone of risk” and defendants ’ inten t to “expose[] everyone in their vicinity to harm,” “[t]h e prosecutor’s
definition of the kill zone

. . . was significantly broader than a proper understanding of the theory permits” and “essentially equated attempted murder with implied malice murder,” which cannot support an attempted murder conviction. ( Cani zales,

supra , at p. 614.) This was reinforced by the prosecutor’s
reference to Darrel and Kimberly as two of the three “primary victims,” conflat ing a victim with a target

. And finally, by arguing the “zone of risk” included the majority of the house, the
prosecutor was suggest ing the family in the house beyond the reach of the gun fire could be included in the kill zone because they were within the zone of risk. “Thus, the prosecutor’ s argument ha d the potential to mislead the jury to believe that the mere presence of a purported victim in an area in which he or she could be fatally shot is sufficient for attempted murder liability41

under the kill zone theory. So misled, the jury might well have
fo und factual suppo rt for what was effectively an ‘implied malice’ theory of attempted murder wit hout detecting the legal error.” ( Ibid. ) Under these circumstances, we cannot conclude beyond a reasonable doubt the jury would have convicted Rayford and
Glass of 11 counts of attempted premeditated murder absent the

erroneous instruction. As to Sheila (count 2), Donisha (count 4), Terry (count 7), and Darrel (count 3), who were identified in trial testimony as standing outside the house on the grass or near th e front door when the shooting began, 20 the shooters fired bullets toward and around them. It is possible the jury convicted as to these counts based not on the kill zone theory but on direct
evidence of the shooters’ intent to kill , which would be legally permissible . As we noted in Rayford I , “ substantial evidence supports a finding there were several potential primary targets ,” including Sheila, Terry, and Donisha

. ( Rayford I, supra , B179017.) However, we cannot tell from the evidence which of
the group in front of the house were the primary target s

. The jury may have fo und the primary target was Terry, whom

20 In Rayford I

, we stated “ Sheila’ s three daughters, her two neighbors and some of her nieces and nephews followed her outside the house” immediately before the confrontation. ( Rayford I, supra

, B179017

. ) However, a close r review of the trial testimony reveals Sheila and Donisha did not identify who other than Terry and Darrel followed Sheila and Donisha outside. N o testimony at trial places Sheila’s two other daughters, Shadonna and Shontel, or any of Sheila’s nieces or nephews outside the house when the shooting began. Although Sheila referenced the “kids” who were present, she did not identify who was present or how many

.42

De’Antwan accosted and physically attacked . Or it may have
found Donisha or Sheila was the primary target for protecting Perry. But the jury alternatively could have focused on the two who were injured

— Kimberly and Darrel

— whom the prosecutor argued were “primary victims

. ” Without knowing which primary target the jury selected as the basis for its appl ication of the kill zone theory, we cannot determine as to which individual s the jury found the shooters acted with the specific intent to kill their primary target. As to the remaining named victims, those whose precise
whereabouts within or outside the house at the time of the shooting are unkno wn, the likelihood the jury based its verdict on a legally erroneous theory is even greater. There is no evidence these victims were anywhere near Sheila, Donisha, Terry, or Darrel when the shooting began. Although a bullet struck Kimberly (count 1) in t he second floor west bedroom, there is no evidence to support a finding the shooters had the specific intent to kill Kimberly. T he same is true for those whose location inside the house is unknown, including Jasmin (count 5), Ebony (count 8), Jerterry (co unt 9), Donte (count 10), and Jermaine (count 11). 21 In light of the entire record, it is not clear beyond a reasonable doubt the jury would have returned the same verdict

21 Donisha testified Glass fired into the front window where one of her cousin s “was looking out.” However, Donisha did not identify this cousin by name, and he or s he is not identified elsewhere in the record. We therefore do not know whether this cousin was a named victim, or another cousin was home at the time of the shooting but not named in the information, such as Kevante.43

absent the error. ( Canizales, supra , 7 Cal.5th at p. 615.) We
therefore vacate Ray ford’s and Glass’s convictions of the 11
counts of attempted premeditated murder. 22

22 Although we asked the parties to add ress at oral argument the options that would be available to the superior court if we vacate Rayford’s and Glass’s convictions, the resolution of how this case will proceed should be determined by the superior court in the first instance. We do not addres s Rayford’s additional contentions he is actually innocent and the trial court erred in failing to instruct the jury that Rayford, as an aider and abettor, may be guilty of a lesser offense than his principals. Rayford did not raise these contentions in h is May 29, 2015 petition. We agree with the People these issues are beyond the scope of the Supreme Court’s transfer order. (See Cal. Rules of Court, rule 8.200 (b)(2) [following transfer from Supreme Court “[s] upplemental briefs must be limited to matters arising after the previous Court of Appeal decision in the cause, unless the presiding justice permits briefing on other matters”]; Dahms v. Downtown Pomona Property & Business Improvement Dist. (2009) 174 Cal. App. 4th 708, 711 , fn. 1 [ declining to consider on remand from Supreme Court “ any arguments raised in the supplemental briefs that could h ave been raised in the parties’ original briefs ”].) Likewise, we do not address Glass’s additional contentions he rece ived ineffective assistance of trial counsel, he is actually innocent, and his sentence of 11 consecutive life sentences for a nonhomicide offense he committed at age 17 is an unconstitutional sentence of life without parole

— the Supreme Court’s denial of G lass’s March 9, 2017 petition for writ of habeas

corpus was without prejudice to filing the petition in this court only for consideration in light of Canizales

. ( In re Glass

, supra , S240520

. )44 DISPOSITION

Rayford ’s and Glass’s petition s for writ s of habeas corpus

are granted, and each defendant’s 11 conviction s for attempted willful, deliberate, and premeditated murder are vacated.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL , J.