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Name: People v. Campos
Case #: B191256
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 11/14/2007

Various jury instructions were found valid. (1) CALCRIM 220 directing the jurors to consider all the evidence received at trial does not preclude the jury from finding reasonable doubt based on the lack of evidence presented at the trial, as well as from the evidence presented. (2) CALCRIM 220 defining proof beyond a reasonable doubt as proof that leaves one with an “abiding conviction” does not require a clarifying instruction for “abiding conviction.” (3) CALCRIM 226 directing jurors to use their common sense and experience in judging credibility of witnesses does not impermissibly invite jurors to consider matters outside the record. (4) CALCRIM 600 allowing for a finding of attempted murder if defendant intended to kill a specific victim or anyone in the “kill zone” does not improperly expand the “kill zone” concept defined in People v. Bland (2002) 28 Cal.4th 313, by using the word “anyone” instead of “everyone.” The evidence reflected the intent of appellants to kill the driver and the rear seat passenger and in carrying out this intent, Campos shot into the car. The intended victims were shot and died and the front seat passenger was shot and severely wounded. Appellants were charged with and convicted of the attempted murder of this front seat passenger. Appellants argued that CALCRIM 600 holding that “A person may intend to kill a specific victim and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone'” was error for several reasons. The court noted that unlike murder, attempted murder requires the specific intent to kill and the doctrine of transferred intent does not apply to attempted murder. But under People v. Bland (2002) 28 Cal.4th 313, a concurrent intent can be found where there is a “kill zone” created and the nature and scope of the attack against the primary victim is such that it can be concluded the perpetrator intended to ensure harm to the primary victim by harming everyone in his vicinity. Here, the court found that with CALCRIM 600, there was no possibility that the jury could have failed to find the requisite intent for the attempted murder charge. The jury was separately instructed as to the necessity of finding specific intent with the attempted murder charge and the “kill zone” theory in CALCRIM 600 was simply a reasonable inference that a primary intent to kill a specific target does not rule out concurrent intent to kill others. Although the “kill zone” instruction as given was ambiguous, it was not inconsistent with Bland. There was little difference between the word “anyone” and the word “everyone” as used in Bland. Finally, the use of the term “kill zone” is not argumentative or inflammatory.