“Kill zone” instruction was properly given where defendants fired five shots into group of rival gang members. Defendants were convicted of murder, attempted murder, and gun use, all committed for the benefit of a gang. On appeal they raised a number of issues, including that there was insufficient evidence to support the trial court’s “kill zone” instruction as to the attempted murder of Bolden. Held: Affirmed on this issue. A defendant who shoots at a group of people intending to kill one of them may be guilty of the attempted murder of others in the group who are within the “kill zone,” when the nature and scope of the attack are such that it can be reasonably concluded that the defendant intended to ensure harm to the targeted individual by harming everyone in the target’s vicinity. Here, Pride was the primary target; five bullets were fired in an effort to hit him. The jury could reasonably infer that the means used to kill Pride would result in the death of others within a zone of danger, including Bolden. The court disagreed with the decision in People v. McCloud (2012) 211 Cal.App.4th 788, which held the “kill zone” theory inapplicable where the evidence shows only that the defendant intended to kill a targeted individual in a manner which subjected others to the risk of fatal injury. This is incorrect because the intent to kill others within the “kill zone” of the targeted person can be inferred from the nature and scope of the attack or method employed to kill.

The language of the “kill zone” instruction was not erroneous. Defendants criticized the “kill zone” portion of the attempted murder instruction because at one point it referred to a “zone of harm” rather than a “zone of lethal harm.” They claimed this could allow conviction based on Bolden being within a “zone of risk” of nonlethal harm from a stray bullet. This is incorrect. The word “lethal” would add nothing to the instruction with respect to the kill zone theory. Further, the jury found the attempted murder of Bolden willful, which means the defendants intended to kill him. [Editor’s Note: This is a reissued opinion following transfer from the California Supreme Court for reconsideration in light of People v. Chiu (2014) 59 Cal.4th 155. In an unpublished part of the opinion, Canizales’ conviction was reversed/remanded for retrial based on Chiu because it could not be determined whether his premeditated first degree murder conviction was improperly based a natural and probable consequences theory.]