Error and/or relief
The court’s use of the kill zone instruction was factually unsupported and should not have been given and the court’s instruction identified a primary target not supported by the evidence.
First Holding:
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. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim.
Authority:
People v. Canizales (2019) 7 Cal.5th 591, 602
People v. Bland (2002) 28 Cal.4th 313, 328
Second Holding:
To be guilty of attempted murder under an aiding and abetting theory, the defendant must share the specific intent of the direct perpetrator, that is to say, the person must know the full extent of the direct perpetrator’s criminal purpose and must give aid or encouragement with the intent or purpose of facilitating the direct perpetrator’s commission of the crime. In short, to be guilty of attempted murder as an aider and abettor, the defendant must intend to kill.
Authority:
People v. Lee (2003) 31 Cal.4th 613, 624, superseded by statute on other grounds as stated in People v. Rodriguez (2022) 75 Cal.App.5th 816, 823–824
People v. McCoy (2001) 25 Cal.4th 1111, 1118
Third Holding:
The Supreme Court has expressly embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. This concurrent intent theory is referred to as the “kill zone.” Under the kill zone theory, a defendant may be convicted of the attempted murder of an individual who was not the defendant’s primary target.
The kill zone theory permits a jury to infer a defendant’s intent to kill an alleged attempted murder victim from circumstantial evidence (the circumstances of the defendant’s attack on a primary target).
Authority:
People v. Canizales (2019) 7 Cal.5th 591, 596-597, 602
People v. Mumin (2023) 15 Cal.5th 176, 193
Fourth Holding:
The kill zone theory 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.
Relevant factors in determining whether defendant intended to create a kill zone are (1) number of shots fired, (2) nature of the zoned area, (3) distance between primary target and others, (4) distance between defendant and others, (5) type of weapon used, and (6) whether anyone was hit.
Authority:
People v. Canizales (2019) 7 Cal.5th 591, 607
Fifth Holding:
Our inquiry on appeal is whether substantial evidence was presented to support a reasonable inference by the jury that defendant intended to create a zone of fatal harm around a primary target.
Justification for instructing on the kill zone theory requires substantial evidence that: (1) the defendant intended to kill a primary target; (2) he concurrently intended to achieve that goal by killing all others in the fatal zone he creates; and (3) the alleged attempted murder victim was in that zone.
These requirements must be strictly adhered to in order to protect against an improper attempted murder conviction based only on a conscious disregard for life because the kill zone theory does not apply where the defendant merely subjected persons near the primary target to lethal risk.
Because use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction, trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory.
Indeed, as stated in Canizales, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate.
Authority:
People v. Mumin (2023) 15 Cal.5th 176, 203
People v. Canizales (2019) 7 Cal.5th 591, 607-608
Sixth Holding:
Fundamental to the kill zone theory is a particular relationship between the primary target, the means of the attack, and the secondary target. Specifically, the would-be secondary targets must be endangered not because they were specifically targeted by defendant but because the defendant has a primary target and reasons that he cannot miss that intended target if he kills everyone in the area in which the target is located.
Authority:
People v. Mumin (2023) 15 Cal.5th 176, 203
(Gary note: The opinion goes on to analyze the facts in the case against the above principles to determine whether it was proper to instruct on the kill zone doctrine and whether the court correctly identified the specific target. It also analyzed the impact of the prosecutor’s summation on the matter. Because this is an unpublished opinion, and the importance lies only in its legal principles and the published authority in support of those principles, I am omitting the balance of the court’s discussion applying those principles in support of its conclusions that it was improper to instruct on kill zone in this case.)