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Name: People v. Stone
Case #: F051812
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 03/04/2008
Subsequent History: review granted 6/23/08, S162675

The jury was improperly instructed on “kill zone” theory of attempted murder. During a confrontation between two rival gangs, Stone pulled out a gun at a carnival and fired it at the rival group. He was convicted of multiple offenses, including an attempted murder of Joel F., a named victim in the rival group. On appeal, Stone contended that the trial court’s instruction on attempted murder misstated the law, because it suggested that the jury could find the requisite specific intent to kill Joel F. by virtue of finding that Joel F. was within a kill zone when Stone fired the gun, and the prosecution only had to prove that appellant intended to kill Joel F. or “anyone” within the kill zone. Appellant contended that the instruction was erroneously worded and inapplicable to the facts of the case. The appellate court agreed and reversed this count. CALCRIM No. 600 states that a person may intend to kill a specific victim, and at the same time intend to kill anyone in a particular zone of harm or “kill zone.” But, in Bland, the Supreme Court noted that the crime of attempted murder requires proof of a specific intent to kill, and that the doctrine of transferred intent has no place in the law of attempted murder. Here, the jury received a modified kill zone instruction, which was erroneous because it stated that Stone only intended to kill Joel F., or someone else in his group. Following Bland, the court found that there was no evidence that Stone intended to specifically target and kill Joel F. or all persons within the group. The kill zone instruction should not have been given. Respondent argued that the instruction was harmless. However, Stone was prejudiced because there was a high probability the jury convicted him on the erroneous general theory of guilt (for shooting into the group), and therefore reversal was required.