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Name: People v. Sek
Case #: B251196
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/17/2015
Subsequent History: Review granted 7/22/2015: S226721

Trial court prejudicially erred by giving CALJIC No. 8.66.1 “kill zone” instruction in attempted murder case. Sek and My were convicted of two counts of attempted murder and related crimes for shooting at the victims (Mejia and Perez) while they were trying to drive away from the defendants’ vehicle. On appeal, the defendants argued that the trial court erred by instructing the jury with CALJIC No. 8.66.1 concerning the kill zone theory of liability for attempted murder. Held: Convictions for the attempted murder of Perez reversed. The kill zone theory applies only if the evidence shows that the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted individual was located. The defendant must specifically intend that everyone in the kill zone die. CALJIC 8.66.1 uses the term “kill zone” but does not adequately define it. Additionally, although attempted murder is a specific intent crime, CALJIC 8.66.1 does not contain a single reference to specific intent. Finally, it provides a concurrent intent instruction that is patently incorrect. Errors and misleading language pervade CALJIC No. 8.66.1. Nothing in the other instructions cured those errors or dispelled those confusions. A reasonable jury would not know what to do with the confusing and misleading “zone of risk” language, or how to harmonize CALJIC No. 8.66.1’s statements about concurrent intent with the specific intent requirement stated in the attempted murder instruction. Under the circumstances of the case, it could not be concluded beyond a reasonable doubt that the erroneous instruction did not contribute to the verdicts as to Perez.

Defendants’ life sentences for attempted murder violated their statutory and due process rights because the information did not allege that the attempted murders were willful, deliberate, and premeditated. Attempted murder that is not willful, deliberate, and premeditated is punishable by five, seven, or nine years in prison. Premeditated attempted murder is punishable by life in prison, but a life sentence shall not be imposed unless the fact that the attempted murder was premeditated is charged in the accusatory pleading and admitted or found true by a jury. (Pen. Code, § 664, subd. (a).) Here, none of the accusatory pleadings alleged that the attempted murders were premeditated. However, the trial court stated that it planned to instruct the jury on the issue during a jury instruction discussion following the close of evidence that the defendants elected to not attend. The defendants were never informed of the sentencing implications of the premeditation allegation. The jury found that the attempted murders were premeditated. The trial court imposed life sentences on the attempted murder counts. This violated section 664, subdivision (a) because the premeditation allegation was not charged in the accusatory pleading. The life sentences also violated defendants’ due process right to fair notice of allegations that would be invoked to increase the punishment for their crimes. The Court of Appeal disagreed with the Attorney General’s contention that the issue was forfeited, distinguishing People v. Houston (2012) 54 Cal.4th 1186. Under the circumstances of this case, the error was prejudicial.