Attempted murder instruction that listed several intended victims and included a “kill zone” theory was defective because use of the words “and/or” between the names of each victim did not require a finding of specific intent to kill as to each victim. Defendant was convicted of multiple offenses, including seven counts of attempted murder, arising out of three separate shooting incidents. On appeal he challenged the attempted murder instruction because the use of the disjunctive “or” in the instruction permitted the jury to convict without finding specific intent as to each victim. Held: Reversed and remanded as to four of the attempted murder convictions. Attempted murder requires express malice, i.e., a specific intent to kill, and the commission of a direct but ineffectual act directed towards carrying out that intent. A defendant who fires into a group of people may be convicted of attempted murder if the evidence shows he intended to kill everyone in the intended victim’s vicinity in order to kill the intended victim, or intended to kill everyone in a particular area (a “kill zone” theory). Here, the trial court gave an attempted murder instruction, grouping the victims by the three separate shooting incidents. The instruction included the disjunctive “or” between the names of each victim, which erroneously permitted the jury to convict on attempted murder based on a finding of intent to kill only one of the named victims. As to four of the attempted murder convictions, the error was prejudicial, requiring reversal. The Court of Appeal found the error harmless as to the remaining attempted murder convictions, based on the evidence.

The giving of an irrelevant instruction on natural and probable consequences was harmless error. Defendant claimed the trial court erred by including in the aiding and abetting instruction (CALCRIM No. 400) optional language regarding natural and probable consequences, because the instruction did not require the prosecution to prove that the nontarget offenses were reasonably foreseeable. That optional portion of the instruction should only be used if the prosecution relies on a theory that any of the charged offenses were committed as a natural and probable consequence of the target offense. The prosecution did not rely on this theory at trial and the trial court did give other jury instructions on the natural and probable consequences doctrine. Although the instruction was legally correct, it was irrelevant and should not have been given. However, this “technical” error was harmless.

The trial court did not err in admitting defendant’s statements to police because they were not the product of promises of leniency. When a defendant moves to suppress his statements to police as the product of coercion, the prosecution must show by a preponderance of the evidence that a defendant’s confession was given voluntarily, based upon the totality of the circumstances. A confession that is elicited by promises of leniency is involuntary and inadmissible. Defendant argued that his statements were motivated by police promises of leniency, that the statements were therefore involuntary, and that their erroneous admission was prejudicial error. However, the mere advice by police that it would be better to tell the truth and to cooperate with them, as occurred in this case, does not render a subsequent confession involuntary.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B259918.PDF