(1) Did the trial court err by providing a kill zone instruction? (2) Did the Court of Appeal apply the proper standard of review under People v. Canizales (2019) 7 Cal.5th 591 in holding the trial court did not err in providing the kill zone instruction?
The proper standard of review when a defendant challenges a trial court’s decision to instruct on a “kill zone” theory as applied to an allegation of attempted murder is whether substantial evidence supports giving the challenged instruction. Defendant was convicted of two counts of attempted murder of a police officer under the kill zone theory, among other charges. He appealed, and the Court of Appeal affirmed the attempted murder convictions. The California Supreme Court granted review to resolve a conflict among the Courts of Appeal as to the proper standard of review when a defendant challenges a court’s decision to instruct on a concurrent intent, or kill zone, theory as applied to an allegation of attempted murder. Held: One count of attempted murder reversed. In People v. Canizales (2019) 7 Cal.5th 591, 608, the court stated that trial courts should provide a concurrent intent (kill zone) instruction only in those cases where there is sufficient evidence to support a jury determination “that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm.” This language led to a conflict in the Courts of Appeal regarding the application of Canizales. After reviewing relevant case law, the Supreme Court clarified that “Canizales included the ‘only reasonable inference’ caveat to explain how the jury should evaluate circumstantial evidence relating to the defendant’s intent.” Canizales did not articulate a new standard for giving an instruction or reviewing that decision on appeal. The analysis at both the trial and appellate level looks to whether there is substantial evidence to support a reasonable inference by the jury that defendant intended to create a zone of fatal harm around a primary target. [Editor’s Note: The court disapproved In re Rayford (2020) 50 Cal.App.5th 754 to the extent it suggested a different standard of review applies, and In re Sambrano (2022) 79 Cal.App.5th 724 to the extent it conflicts with Canizales as well as the views in this opinion.]
Substantial evidence did not support a concurrent intent (kill zone) instruction in this case, the instruction was not legally correct, and the error was prejudicial. The Supreme Court agreed with defendant that a concurrent intent instruction should not have been given based on the evidence in this case. Fleeing from police after a robbery and murder, defendant entered a community room at an apartment complex that had several doors. Detective Mackay approached Door 1, and Detective Johnson provided cover, standing 25 feet away in front of Door 2. As Detective Mackay opened Door 1 slightly, defendant shot once through the opening of Door 1 and twice through closed Door 2. To prove the specific intent to kill Detective Johnson behind Door 2, the prosecution invoked the concurrent intent theory, while acknowledging there was no evidence defendant targeted Detective Johnson directly. In determining whether there is sufficient evidence to support a concurrent intent instruction, the court considers the circumstances of the shooting, including the type of weapon used, the number of shots fired, the distance between the defendant and the victims, and the proximity of the victims to the primary target. Reliance on the concurrent intent theory was misplaced here, where defendant fired three shots into an open area, where the primary and secondary targets were positioned at least 25 feet apart, and neither was hit. Additionally, the instruction that was given (a modified version of former CALCRIM No. 600) was not legally sound and the prosecutor’s argument did not properly explain the kill zone theory. Under Chapman, the error was not harmless. Even if there was substantial evidence defendant also had a specific intent to kill Detective Johnson, the verdict does not reflect the jury necessarily made this factual inference. [Editor’s Note: Justice Liu wrote separately in a concurring opinion to suggest abandonment of the kill zone theory as a distinct theory of attempted murder. “Doing so would not eliminate the concept of concurrent intent; it would simply clarify that concurrent intent to kill is an inference the jury may draw from the totality of circumstances in attempted murder cases with multiple victims, not a distinct theory warranting a separate instruction.” The potential for error in employing the kill zone instruction has proven to be substantial.]
This case was decided on 8/17/2023. Justice Corrigan authored the opinion of the Court, in which Acting Chief Justice Jenkins and Justices Kruger, Groban, and Robie* concurred. Justice Liu filed a concurring opinion, in which Justice Evans concurred.
*Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Review on this issue was also granted with briefing deferred in:
- People v. Brown (Feb. 22, 2022, G060395) [nonpub. opn.], review granted 4/27/2022 (S273752)
- People v. Brewer (F082631) [nonpub. opn.], review granted 7/26/2023 (S280503)
