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Name: People v. Anzalone
Case #: D044138
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/13/2006

Defense counsel was ineffective for failing to object to the prosecutor’s misstatement of the law during arguments. Appellant was caught attempting to steal a car by its owner. The owner called for help and three of his friends came to his aid. Appellant fired two shots, one towards the owner, and the other in the direction of the other men. He was convicted of, inter alia, four counts of attempted murder. Although the court’s instructions on the attempted murder of four people based on two shots was correct, the prosecutor’s arguments were not. The prosecutor incorrectly argued that defendant could be found guilty of attempting to murder someone he did not intend to kill simply because that person is in some undefined zone of danger. In fact, the law of concurrent intent as it applies to attempted murder requires that “the nature of [defendant’s] attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person.” Defense counsel’s failure to object to this misstatement of law allowed the jury to convict defendant of three additional counts of attempted murder merely because these three people were in some zone of danger. Reversal of those three counts is required.