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Name: People v. McCloud
Case #: B228209
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 12/05/2012

Trial court prejudicially erred by giving kill zone theory instruction because there was no evidence that appellants intended to kill 46 people with 10 bullets. Appellants McCloud and Stringer fired 10 shots at a party with a large number of people present, killing two people and injuring another. Seven of the bullets did not hit anyone. They were both convicted of two counts of second degree murder. Stringer was also convicted of 46 counts of attempted murder. On appeal, Stringer argued that the trial court committed prejudicial error by instructing the jury on the kill zone theory of liability for attempted murder. The Court of Appeal agreed. A defendant can be guilty of the attempted murder of victims who were not his “primary target” based on a “kill zone” theory. A shooter may be convicted of multiple counts of attempted murder under this theory where the evidence establishes that he used lethal force and specifically intended to kill everyone around the targeted victim. Here, there was no evidence that appellants intended to kill 46 people with 10 bullets and no evidence that this was even possible or that appellants believed it was possible. The fact that the party was extremely crowded does not constitute evidence that appellants intended to kill more than one person per bullet fired. Additionally, the prosecutor’s argument regarding the kill zone was based on a legally erroneous conception of the theory. First, there was no evidence that anyone was a primary target. Second, the prosecutor’s argument that individuals who are merely endangered or put at risk are attempted murder victims on the kill zone theory is incorrect as a matter of law. The error was prejudicial because the prosecutors argument for Stringer’s guilt on each of the attempted murder counts was based entirely on the kill zone theory instruction that should not have been given and the evidence of specific intent to kill was not overwhelming. The court noted that the pattern jury instruction for the kill zone theory, CALJIC No. 8.66.1 should probably be revised because it incorrectly suggests that a defendant can create a kill zone merely by subjecting individuals other than the primary target to a risk of fatal injury.

The evidence was insufficient to support 46 counts of attempted murder when appellant fired only 10 bullets. Stringer also argued that there was insufficient evidence to support his 46 attempted murder convictions. The Court of Appeal agreed in part. Applying People v. Perez (2010) 50 Cal.4th 222, the court concluded that the evidence supported only eight attempted murder convictions because 10 shots were fired but two of the bullets killed two victims (Stringer was separately convicted and punished for these killings). There was no evidence that appellants specifically intended to kill 11 or more persons (more persons than bullets fired) but were only thwarted from firing additional bullets due to circumstances beyond their control. While the evidence might support a reasonable inference that appellants were targeting an individual who punched Stringer, the targeting of that individual could not be the basis for convicting Stringer of the attempted murder of other individuals.