Trial court correctly instructed jury with “kill zone” theory of attempted murder liability where defendant shot through closed doors at pursuing police officers. Mumin was convicted of special circumstance murder after he killed a man during a store robbery, as well as several counts of attempted murder for shooting at pursuing police. The trial court instructed the jury on a kill zone theory of attempted murder liability. On appeal, Mumin argued the evidence was insufficient to warrant a kill zone instruction. Held: Affirmed. When a single act is charged as the basis for the attempted murders of two or more persons, the intent to kill element must be proved independently as to each alleged victim. A so-called “kill zone” instruction is only proper when: (1) the circumstances of the defendant’s attack on a primary target 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 (People v. Canizales (2019) 7 Cal.5th 591). In this case, the parties disputed the proper standard of review of a trial court’s decision to instruct on this theory: Mumin argued the reviewing court must find that the only reasonable inference from the evidence is that the defendant had the requisite intent; respondent asserted it is sufficient if the reviewing court concludes the evidence supports a reasonable inference that the defendant had the necessary intent, even if an opposite inference is also reasonable. The court agreed with respondent. Here the evidence was sufficient to warrant a kill zone instruction because defendant fired a number of shots through several doors that police were attempting to enter to arrest him, intending to kill anyone who might be behind either door. [Editor’s Note: The court disagreed with In re Rayford (2020) 50 Cal.App.5th 754, which held the reviewing court must be convinced that the only reasonable inference from the evidence is that the defendant had the requisite intent.]
Any issue regarding the trial court’s questioning of defense counsel following closing argument was forfeited for lack of objection. During closing argument, defense counsel admitted some of the allegations involving Mumin’s assault on police, instead emphasizing a challenge to the attempted murder counts. After the court excused the jury, the court asked counsel whether she had discussed this strategy with the client (see McCoy v. Louisiana (2018) 584 U.S. __ [138 S.Ct. 1500, 1510] [counsel may not admit her client’s guilt of a charged crime over the client’s objection].) Mumin’s counsel responded, “I would wait till everyone is out of the room.” The court said, “So the answer is yes?” Mumin’s counsel answered, “Yes.” The transcript did not reflect whether there were any pauses or delays between the statements. On appeal, Mumin argued the court committed misconduct by asking defense counsel questions about her strategy in the jury’s presence. However, Mumin forfeited this issue by failing to object to the court’s questions. In any event, there was no prejudice resulting from the court’s questions as it is unlikely a lay jury understood that the question was unusual in any way and it did not imply any criticism of counsel’s argument.
Defendant’s convictions for assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) should be vacated because they are lesser included offenses of assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)). In general, a person may be convicted of more than one crime arising out of the same act or course of conduct (Pen. Code, § 954), but may not be punished for both (Pen. Code, § 654). “A judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses.” “The greater offense of assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)) includes all of the statutory elements of the lesser offense of assault with a semiautomatic firearm (id., subd. (b))plus the additional element that the assault must be upon the person of a peace officer” who the defendant knows is engaged in the performance of his duties. Thus, Mumin may not be convicted of both sets of assault offenses.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D076916.PDF