Filed 6/16/20

On 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

on Habeas Corpus.

 B264402

 (Los Angeles County

 Super. Ct. No. MA028053)

In re

DUPREE ANTOINE GLASS

on Habeas Corpus.

 B303007

ORIGINAL PROCEEDINGS; petitions for a writ of habeas 

corpus. Robert J. Perry, Judge. Petitions granted.

Law Offices of Annee Della Donna and Annee Della Donna

for Petitioners.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Zee Rodriguez and Noah P. Hill, Deputy 

Attorneys General, for Respondent.
2

A jury convicted codefendants Juan Marshall Rayford and 

Dupree Antoine Glass of 11 counts of attempted willful, 

deliberate, and premeditated murder and one count of shooting at 

an inhabited dwelling based on their participation in a 2004

shooting at the home of Sheila Lair. On direct appeal, we 

affirmed Rayford’s and Glass’s convictions 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 petition 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 we denied the petition, the

California Supreme 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 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.” (Canizales, supra, 7 Cal.5th at

pp. 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, S240520.) 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 petitions.

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: Kimberly Lair (count 1), Sheila Lair

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

(count 2), Darrel Edward2 (count 3), Donisha Williams (count 4), 

Jasmin Thompson (count 5), Shadonna Williams (count 6), Terry 

Watson (count 7), Ebony Howard (count 8), Jerterry Burns (count 

9), Donte Burns (count 10), and Jermaine 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 

association with a criminal street gang (§ 186.22, subd. (b)), a 

principal personally used a firearm (§ 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 Trial5

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. There 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 known 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 

firearm 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 exhibits to the petitions filed by Rayford and 

Glass.
5

her family for several years and had eaten many meals at the

family’s house 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 

Glass 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 reach 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 

house 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 house. Glass repeated his question 

several times, and Donisha felt Glass thought she was lying. 

Donisha invited Glass to her house to see for himself Perry was 

not there.

Ten minutes later, at around 1:30 a.m., Glass called 

Donisha and told her he was at her house. 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 “to 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 their

mother. Also in the house were Shontel; Sheila’s sister Kimberly;

Kimberly’s boyfriend; and Sheila’s nieces and nephews Ebony, 
6

Jasmin, Jermaine, 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 south-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 Rayford 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 bullets hit the house. 

6 We assume Jeterry is the same person as “Jerterry Burns” 

named in count 9 of the information.

7 Shontel and Kevante were not named as victims 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 standing toward the first

story front window. Sheila 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 to the 

house. Shots “came towards” Sheila and struck the wall near 

her, but they did not hit her. But Darrel was struck 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 cousins was 

looking out the window.

9 Donisha could not tell how many of the 

group near the front door were able to get back inside during the 

gunfire. Inside the house, Sheila’s sister 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. Four were fired from east to west, and four 

were fired from south to north. The bullet that grazed Kimberly’s 

back traveled east to west, striking “the fascia board above the 

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 wooden 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 struck 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 the ground and entered the 

house through “the right wall as you are walking in.” A third 

south-to-north 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 shooters firing 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 who 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 with 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 Darrel, 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 the 
10

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 trial court instructed the jury with CALJIC No. 8.66.1, 

that to convict a defendant of attempted murder it must find “1. 

A direct but ineffectual act was done by one person towards 

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 further, “A person who primarily intends to kill one 

person, may also concurrently intend to kill other persons within 

a particular zone of risk. This zone of risk is termed the ‘kill 

zone.’ The intent is concurrent when the nature and scope of the 

attack, while directed at a primary victim, are such that it is 

reasonable to infer the perpetrator intended to 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 zone’ is an 

issue to be decided 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, you 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, they 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 and 
11

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 incident 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 this 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 shots were 

fired and the triggers were pulled was Sheila Lair. Sheila Lair 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 shooting 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 years on the firearm enhancements (20 years 

on each count under § 12022.53, subds. (c) & (e)). The court 

stayed the sentences on the gang enhancements and on count 12 

for shooting at an inhabited dwelling.
12

E. Defendants’ Direct Appeal

In Rayford I, Rayford argued there 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 retreat.

11 Rayford argued there was not substantial evidence to 

support instruction of the jury on the kill zone theory of 

concurrent 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 grazed 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.” (Rayford I, 

supra, B179017.)12

We affirmed Rayford’s and Glass’s convictions but vacated

the gang enhancements, concluding there was insufficient 

evidence of the gangs’ “primary 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 enhancements as well. 

We affirmed the judgments as modified.

F. Rayford’s Petition for Writ of Habeas Corpus

On May 29, 2015 Rayford 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 we denied the petition “without 

prejudice to refiling in this court to the extent it is determined, in 

12 We also rejected Glass’s contention the trial court’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.” The 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 briefing, on 

November 13, 2019 we issued an order to show cause why relief 

should not be granted. The 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. On 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 “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, S240520.) Glass 

filed a petition for writ of habeas corpus with this court on 

December 13, 2019. On December 18 we issued an order to show 

cause why relief should not be granted. The 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 articulated 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 intended 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 

Court 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 target on the 

plane by killing all the passengers and where a defendant attacks 

a group of people by using “‘automatic weapon fire or an explosive 
16

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

p. 330, quoting Ford v. State (1993) 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 evidence “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 page

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 Court 

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.’” (Ibid.; 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 group 

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 theory 
17

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 

defendant 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 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. Evidence that a 

defendant who intends to kill a primary target acted with only 

conscious disregard 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 applicable 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 support 

a jury determination that the only reasonable inference from the 
18

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 insufficient 

to support a kill zone instruction.” (Canizales, supra, 7 Cal.5th at

p. 608.)

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 the defendants in Canizales fired five shots from 

a semiautomatic nine-millimeter gun at a group that included a 

rival gang member (Denzell Pride) with whom one of the 

defendants 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.) The 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 

Court distinguished these facts from those in other cases in 

which “the defendants opened fire while in close proximity to the 
19

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.4th 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 

16, 24 [defendant fired 10 shots at four people standing in close 

proximity to each other and 21 feet from defendant, hitting three

of the group].)

B. Canizales Has 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 previously 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 change 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 to 
20

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.’” (United States v. 

Johnson (1982) 457 U.S. 537, 542; see Linkletter, at p. 622 [“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 prosecutions, should operate retroactively to cases that 

were final prior to Mapp. (Linkletter, supra, 381 U.S. at p. 619.) 

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.) The Linkletter

court weighed these factors and concluded Mapp did not apply 

retroactively on habeas corpus review, observing the purpose of 

Mapp’s application of the exclusionary rule to the states to deter

illegal police action would 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 retroactivity of 
21

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

Allen v. Hardy (1986) 478 U.S. 255, 258-260 [concluding 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 [denying 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 court 

explained as to cases on collateral review, “Unless they 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 retroactivity. 

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 

fundamental 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 new substantive rules. (Saffle,

at p. 494; accord, Whorton v. Bockting (2007) 549 U.S. 406, 416 
22

[“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. (See, 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 for juvenile offenders, applies retroactively on 

collateral review under Teague because it is a substantive rule,

explaining a substantive rule “forbids ‘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, 351-352 

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

584 that aggravating factors be proved to a jury instead of a 

judge does not apply retroactively 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 to 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 analysis under Johnson and 

Mutch

In In re Johnson (1970) 3 Cal.3d 404, 410 (Johnson), the 

California Supreme Court applied a modified version of the 

Linkletter test13 to conclude the United States Supreme Court’s 

decision in Leary v. United States (1969) 395 U.S. 6 (Leary), 

which held 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, “Fully 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. 411-412.) The court added, “[T]he more 

directly the new rule in question serves to preclude the conviction 

of innocent persons, the more 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 modified Linkletter test as 

set forth in Stovall v. Denno, supra, 388 U.S. at page 297. 

(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, applied

retroactively to final 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 felonymurder conviction, because Chun precluded the conviction of 
25

innocent persons by narrowing the class of conduct 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, in People v. Daniels (1969) 71 Cal.2d 1119 (Daniels), 

the California Supreme Court held 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.)

The 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 relating 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 taxes were not authorized under state 

14 Most cases have applied the Johnson test to procedural 

rules, although the Court of Appeal in Hansen applied Johnson to 

Chun’s interpretation of California substantive law. (Hansen, 

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 parties 

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 without the possibility of parole, applied retroactively 

under Mutch because the decisions “did not create new law; they 

simply stated what section 190.2, subdivision (d) [defining special 

circumstance murder] has always meant”].)

In finding Daniels retroactive, the Mutch court 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 rule that the courts had 

theretofore misconstrued.’” (Woosley, supra, 3 Cal.4th at p. 794;

accord, Hansen, supra, 227 Cal.App.4th at p. 916 [Mutch

determined its “new interpretation of the aggravated kidnapping 

statute was not a change in the law at all”].) The Woosley court 

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.’” (Woosley, at p. 794.)

The Mutch court declined to “undertake the often perilous 

task of applying . . . the test of ‘retroactivity’ developed in a wellknown series 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 “primarily 
27

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 Martinez

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 155 (Chiu) applied retroactively 

on collateral review. The Supreme Court in 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, reasoning “a change in 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 decision 

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, citing

with approval to the Court of Appeal’s decision in Lopez, supra,

246 Cal.App.4th at pages 357-359, 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 Mutch
28

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

under 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 with Chiu under a different theory of 

aider and abettor liability. (Martinez, supra, 3 Cal.5th at 

pp. 1223-1224.)

16 The Lopez court cited to Schriro v. Summerlin, supra, 

542 U.S. at pages 351-354 for its Teague analysis. (Lopez, supra, 

246 Cal.App.4th at p. 357.)
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 (1973) 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 . . . .”].) As such, attempted willful, deliberate, and 

premeditated murder is a statutorily 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 the kill zone

theory to correct the overbroad application of the theory by 

several Courts of Appeal. (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 kill 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, S260915

[Canizales “limited the application of the kill zone theory”].) By 

limiting the scope of liability for attempted premeditated murder

under the theory of concurrent intent to kill, the California 

Supreme Court in Canizales was declaring the Legislature’s 

intent, as the Supreme Court had done in Chiu as to aider and 
30

abetter 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 pp. 353-354; 

accord, Montgomery v. Louisiana, supra, 577 U.S. at p. ___ 

[136 S.Ct. at p. 733].) 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 support 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. 608; see 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 Johnson’s tripartite test for retroactivity also 

militates strongly in favor of retroactivity because the purpose of 
31

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 everyone 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 People 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 court 

explained where there is no prior rule to the contrary, “the new 

rule applies in all cases not yet final.” (Id. at p. 399.) This 

category 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 court reasoned, in 

those 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. (1983) 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 

Court expressly disclaimed retroactive effect of the change in law, 

concluding specific policy concerns 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 should 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 cases 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 which trial began before that date . . . .”].) Canizales’s 

guidance to trial courts stands in sharp contrast to these express 

statements rejecting any retroactive 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 

this 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 Canizales, the Evidence at Trial Was Not Sufficient 

To 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.) 

The 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, who 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 Rayford 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 killed. 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, there 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 AK47 assault rifle to fire “up to four times the velocity of handgun 

ammunition” into the houses, including 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 supported 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 ineffectiveness 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 Darrel came within a zone of fatal harm or was 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 prior 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 these 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.) Rather, 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 killed. 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 kill each
37

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 because 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

inadequate 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 instruction 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” applies. (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, after
38

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

inadequate ground. (Id. at p. 7; Guiton, at p. 1128.) As the

Supreme Court explained, “When 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, we must ask whether there is a

‘“reasonable likelihood”’ that the jury understood the kill zone

theory in a legally impermissible manner. [Citations.] In doing

so, we consider the instructions provided to the jury and 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.’” 

(Id. 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 another
39

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,” other 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,” the 

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 to 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 theory 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 the error. 

The 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.” Further, 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’ intent to 

“expose[] everyone in their vicinity to harm,” “[t]he 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. (Canizales, 

supra, at p. 614.) This was reinforced by the prosecutor’s 

reference to Darrel and Kimberly as two of the three “primary 

victims,” conflating a victim with a target. And finally, by 

arguing the “zone of risk” included the majority of the house, the 

prosecutor was suggesting the family in the house beyond the 

reach of the gunfire could be included in the kill zone because 

they were within the zone of risk. “Thus, the prosecutor’s 

argument had 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 liability 
41

under the kill zone theory. So misled, the jury might well have 

found factual support for what was effectively an ‘implied malice’

theory of attempted murder without 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 the 

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 targets. The 

jury may have found 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 closer review of the trial 

testimony reveals Sheila and Donisha did not identify who other 

than Terry and Darrel followed Sheila and Donisha outside. No 

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 application of the kill 

zone theory, we cannot determine as to which individuals 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 unknown, 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 the second floor west bedroom, there is no 

evidence to support a finding the shooters had the specific intent 

to kill Kimberly. The same is true for those whose location inside 

the house is unknown, including Jasmin (count 5), Ebony (count 

8), Jerterry (count 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 cousins “was looking out.” However, Donisha did not 

identify this cousin by name, and he or she 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 Rayford’s and Glass’s convictions of the 11 

counts of attempted premeditated murder.22

22 Although we asked the parties to address 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 address 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 his 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 have been raised in the parties’ 

original briefs”].) Likewise, we do not address Glass’s additional 

contentions he received 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 Glass’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 petitions for writs of habeas corpus 

are granted, and each defendant’s 11 convictions for attempted 

willful, deliberate, and premeditated murder are vacated.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.