The “kill zone” theory for establishing the specific intent to kill required for attempted murder is proper when the only reasonable inference from the evidence is that the defendant intended to kill everyone in the zone of fatal harm to ensure the death of his primary victim. Defendants Canizales and Windfield were tried for first degree murder and two counts of attempted murder arising from a gang-related shooting. The murder victim was a bystander who was shot during the defendants’ attempt to kill the targeted victim, Pride. The trial court gave a kill zone instruction as to one of the two attempted murder victims (Bolden). On appeal, Canizalez’s murder conviction was reversed, but the Court of Appeal otherwise affirmed. The California Supreme Court granted review to resolve a conflict in the Courts of Appeal regarding the kill zone theory. Held: Reversed. In People v. Bland (2002) 28 Cal.4th 313, the California Supreme Court adopted what is now commonly known as the kill zone theory and embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. Here, the court clarified that the kill zone theory is only proper when: (1) the circumstances of the defendant’s attack on a primary target, including the type and extent of the force used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm and to kill everyone present to ensure the primary target’s death; and (2) the alleged attempted murder victim who was not the primary target was in that zone of harm. “The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction.” Here the evidence was insufficient to warrant a kill zone instruction because defendant fired a number of shots at his intended victim Pride from a substantial distance as Pride and Bolden ran away in an open area. The error was prejudicial under Chapman based on the instruction given and the prosecutor’s argument, requiring reversal of the attempted murder convictions as to Bolden.

[Editor’s Notes: The court noted that it anticipates there will be relatively few cases in which the kill zone theory applies. The court also noted that, when the kill zone instruction is legally warranted, the standard instruction on attempted murder (CALCRIM No. 600) should be revised to better describe the kill zone theory as the court explained the theory in this case. Additionally, in footnote 5, the court lists appellate opinions that have not properly articulated the kill zone theory. Finally, the court also noted that it is considering the appropriate standard for prejudice in cases such as this in People v. Aledamat (2018) 20 Cal.App.5th 1149, review granted 7/5/2018 (S248105/B282911).]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/S221958.PDF