Attempted murder conviction reversed because trial court should not have given a kill zone instruction. While at a party, Cardona and a fellow gang member tried to steal a tank of nitrous oxide from another partygoer, Jauregui, who resisted and stabbed Cardona. Cardona pulled out a gun and fired many times, killing Jauregui. Another partygoer standing nearby was also struck by a bullet and seriously injured. A jury convicted Cardona of first degree murder, attempted murder, and found true a number of enhancements. On appeal, Cardona argued that the court erred when it gave a kill zone instruction with respect to the attempted murder charge. Held: Attempted murder conviction reversed. The kill zone theory applies where the defendant attempts to kill an entire group of people in order to kill a specific victim. Because the defendant acts with the specific intent to kill everyone in the victim’s vicinity he is guilty of attempted murder of each member of the group. However, the theory does not apply, and the instruction should not be given, when there is no evidence of an intent to kill an entire group of people. (People v. Stone (2009) 46 Cal.4th 131.) The number of shots fired or fact the defendant had a primary target are relevant factors for whether an instruction is appropriate, but are not dispositive. Here, all of the evidence indicated that Cardona’s primary motivation in shooting Jauregui was self-defense and there was no evidence that Cardona sprayed everyone near Jauregui with gunfire. Because there was no evidence of an attempt to kill everyone in a particular area in order to kill Jauregui, it was error to give the kill zone instruction. The court found the error prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836-837, because the prosecutor relied on it exclusively during closing argument as his theory for why the jury should convict Cardona of attempted murder.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B261458.PDF