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Natural and Probable Consequences Doctrine
&
Kill Zone Theory
Jason Cox
(510) 528-8087
CPDA
San Diego, CA
September 9, 2017
Syllabus Materials
“The Law of Criminal Homicides: Murder and
Manslaughter,” by Robin Bernstein-Lev (4/17)
“The Natural and Probable Consequences Doctrine,”
by Robin Bernstein-Lev (6/15)
“Legal Issues That Really Matter in Homicide Cases,”
by Michael Ogul (3/17)
My PowerPoint
The Natural and Probable
Consequences Doctrine
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Natural and Probable Consequences
Doctrine
“[A] person who aids and abets a confederate in
the commission of a criminal act is liable not only
for that crime (the target crime), but also for any
other offense (nontarget crime) committed by the
confederate as a ‘natural and probable
consequence’ of the crime originally aided and
abetted.” (People v. Prettyman (1996) 14 Cal.4th
248, 254.)
Aiding and Abetting
“[A] person aids and abets the commission of a
crime when he or she, acting with (1) knowledge
of the unlawful purpose of the perpetrator; and (2)
the intent or purpose of committing, encouraging,
or facilitating the commission of the offense, (3)
by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” (People
v. Beeman (1984) 35 Cal.3d 547, 561.)
Aiding and Abetting
Two mental state elements:
The law requires “proof that an aider and abettor
act with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating
commission of, the offense.” (People v. Beeman
(1984) 35 Cal.3d 547, 560, original italics.)
3
Aiding and Abetting Requires Specific Intent
“The aider and abettor must specifically intend to
aid the perpetrator, whether the intended crime
itself requires a general or specific intent on the
part of the perpetrator.” (People v. Mendoza
(1998) 18 Cal.4th 1114, 1132.)
Aiding and Abetting
Act and mental state elements:
“[A]ider and abettor liability requires proof in three
distinct areas: (a) the direct perpetrator’s actus reus – a
crime committed by the direct perpetrator, (b) the aider
and abettor’s mens rea – knowledge of the direct
perpetrator’s unlawful intent and an intent to assist in
achieving those unlawful ends, and (c) the aider and
abettor’s actus reus – conduct by the aider and abettor
that in fact assists the achievement of the crime.”
(People v. Perez (2005) 35 Cal.4th 1219, 1225.)
NPC = A&A Plus
“[W]hen a particular aiding and abetting case triggers
application of the ‘natural and probable consequences’
doctrine, the Beeman test applies, and the trier of fact
must find that the defendant, acting with (1) knowledge
of the unlawful purpose of the perpetrator; and (2) the
intent or purpose of committing, encouraging, or
facilitating the commission of a predicate or target
offense; (3) by act or advice aided, promoted,
encouraged or instigated the commission of the target
crime. . . . .” (People v. Prettyman (1996) 14 Cal.4th
248, 262.)
4
NPC = A&A Plus
“But the trier of fact must also find that (4) the
defendant’s confederate committed an offense
other than the target crime; and (5) the offense
committed by the confederate was a natural and
probable consequence of the target crime that the
defendant aided and abetted.” (People v.
Prettyman (1996) 14 Cal.4th 248, 262, original
italics.)
NPC Mental State
“By its very nature, aider and abettor culpability under
the natural and probable consequences doctrine is not
premised upon the intention of the aider and abettor to
commit the nontarget offense because the nontarget
offense was not intended at all. . . . . Because the
nontarget offense is unintended, the mens rea of the
aider and abettor with respect to that offense is
irrelevant and culpability is imposed simply because a
reasonable person could have foreseen the
commission of the nontarget crime.” (People v.
Canizalez (2011) 197 Cal.App.4th 832, 852.)
Reasonably Foreseeable
Under the natural and probable consequences
doctrine, “the ultimate factual question is one of
foreseeability.” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 107.)
“A consequence that is reasonably foreseeable is a
natural and probable consequence under this
doctrine.” (People v. Smith (2014) 60 Cal.4th 603,
611, original italics.)
5
Foreseeability is an Objective Standard
“The … question is not whether the aider and
abettor actually foresaw the additional crime, but
whether, judged objectively, it was reasonably
foreseeable.” (People v. Mendoza (1998) 18
Cal.4th 1114, 1133, original italics.)
Foreseeability is an Objective Standard
“Consequently, the issue does not turn on the
defendant’s subjective state of mind, but depends
upon whether, under all of the circumstances
presented, a reasonable person in the defendant’s
position would have or should have known that the
charged offense was a reasonably foreseeable
consequence of the act aided and abetted by the
defendant.” (People v. Nguyen (1993) 21
Cal.App.4th 518, 531.)
Intoxication and Mental State
“[E]vidence of voluntary intoxication is relevant to the
extent it establishes whether an aider and abettor knew of
the direct perpetrator’s criminal purpose and intended to
facilitate achieving that goal, even in cases in which the
perpetrator intended to commit a ‘general intent’ crime
[citation] ....” (People v. Letner and Tobin (2010) 50
Cal.4th 99, 186.)
However, “intoxication is irrelevant in deciding what is
reasonably foreseeable in the context of the natural and
probable consequences doctrine. [Citation.]” (People v.
Rangel (2016) 62 Cal.4th 1192, 1229.)
6
Based on Known Circumstances
“. . . under all of the circumstances presented, a reasonable
person in the defendant’s position would have or should
have known . . . .” (People v. Nguyen (1993) 21
Cal.App.4th 518, 531.)
“A person who aids and abets before the fact can only act
in light of the circumstances prevailing before the fact. In
contrast, a person who is present at the commission of a
crime for the purpose of assisting in its perpetration has
additional opportunity to observe and understand the
manner in which the target offense will be committed.”
(Ibid.)
Foreseeability is a Factual Issue
“A reasonably foreseeable consequence is a factual
issue to be resolved by the jury who evaluates all the
factual circumstances of the individual case.” (People
v. Favor (2012) 54 Cal.4th 868, 874.)
“‘Whether the act committed was the natural and
probable consequence of the act encouraged and the
extent of defendant’s knowledge are questions of fact
for the jury.’ [Citation.]” (People v. Croy (1985) 41
Cal.3d 1, 12, fn. 5, original italics.)
How Foreseeable?
“[T]o be reasonably foreseeable ‘[t]he consequence need
not have been a strong probability; a possible consequence
which might reasonably have been contemplated is
enough. …’” (People v. Medina (2009) 46 Cal.4th 913,
920.)
“A natural and probable consequence is one that a
reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all of the
circumstances established by the evidence.”
(CALCRIM 402 and 403.)
7
NPC v. Second Degree Felony Murder
“Second degree felony murder is ‘an unlawful killing
in the course of the commission of a felony that is
inherently dangerous to human life but is not included
among the felonies enumerated in section 189.’
[Citation.]” (People v. Chun (2009) 45 Cal.4th 1172,
1182.)
“Whether a felony is inherently dangerous is
determined from the elements of the felony in the
abstract, not the particular facts. [Citation.]” (Id. at
1188.)
NPC v. Second Degree Felony Murder
“The natural and probable consequences doctrine
operates independently of the second degree felony-
murder rule. It allows an aider and abettor to be
convicted of murder, without malice, even where the
target offense is not an inherently dangerous felony.
(See, e.g., People v. Lucas (1997) 55 Cal.App.4th 721,
732-733 [target offense of brandishing a firearm];
People v. Laster (1997) 52 Cal.App.4th 1450, 1463-
1466 [target offense of discharging a firearm from a
motor vehicle].)” (People v. Culuko (2000) 78
Cal.App.4th 307, 322.)
Non-NPC Unjustifiable Bootstrapping
In determining whether an act is inherently
dangerous to human life, we cannot reason
backwards from a dead victim. Such “unjustifiable
bootstrapping” is not permitted. The fact that an act
caused death does not mean that the act was
inherently dangerous to the lives of others. (People
v. Burroughs (1984) 35 Cal.3d 824, 829-830.)
“[T]here is a killing in every case where the rule
might potentially be applied.” (Id. at 830.)
8
NPC Unjustifiable Bootstrapping
“[I]t is not obvious a jury of laypersons, lacking
instruction on target offenses, would not have
viewed murder as a natural and probable
consequence of a simple assault or even an
argument, perhaps on a generalized view that
things can get out of hand in such altercations.”
(People v. Hickles (1997) 56 Cal.App.4th 1183,
1197-1198.)
Target Crimes
“[T]o convict a defendant of a crime under this
doctrine, the jury need not unanimously agree on
the particular target crime the defendant aided and
abetted.” (People v. Prettyman (1996) 14 Cal.4th
248, 267-268.)
Must Identify the Target Crime(s)
However, “a conviction may not be based on the
jury’s generalized belief that the defendant intended to
assist and/or encourage unspecified ‘nefarious’
conduct.” (People v. Prettyman (1996) 14 Cal.4th
248, 268.)
“[W]hen the prosecutor relies on the ‘natural and
probable consequences’ doctrine, the trial court must
identify and describe the target crimes that the
defendant might have assisted or encouraged.” (Id. at
254.)
9
Trivial or Unconnected Target Crimes
“Murder, for instance, is not the ‘natural and
probable consequence’ of ‘trivial’ activities. To
trigger application of the ‘natural and probable
consequences’ doctrine, there must be a close
connection between the target crime aided and
abetted and the offense actually committed.”
(People v. Prettyman (1996) 14 Cal.4th 248, 269,
original italics.)
Trivial or Unconnected Target Crimes
“There is not ‘a close connection’ between any of the
target crimes Leon aided and abetted, and Rodriguez’s
commission of witness intimidation. [Citation.] . . .
[T]he fact that the crimes were gang related and that
they were committed in a rival gang’s territory clearly
increased the possibility that violence would occur.
However, witness intimidation cannot be deemed a
natural and probable consequence of any of the target
offenses.” (People v. Leon (2008) 161 Cal.App.4th
149, 160.)
Lesser Target and Non-Target Crimes
“[I]f the jury were to find defendant lacked the
knowledge and intent necessary to convict him of aiding
and abetting a robbery, but that he aided and abetted
grand theft, it would follow that the jury could find
second degree murder (based on the risk the victim of
grand theft might die of a heart attack) was too remote
to be considered a natural and probable consequence,
but find involuntary manslaughter based on the fact the
victim was killed in the commission of a felony that was
not inherently dangerous.” (People v. McDonald (2015)
238 Cal.App.4th 16, 32-33.)
10
Lesser Non-Target Crime
“[A]n aider and abettor may be found guilty of a
lesser crime than that ultimately committed by the
perpetrator where the evidence suggests the
ultimate crime was not a reasonably foreseeable
consequence of the criminal act originally aided
and abetted, but a lesser crime committed by the
perpetrator during the accomplishment of the
ultimate crime was such a consequence.” (People
v. Woods (1992) 8 Cal.App.4th 1570, 1577.)
Assault as a Target Crime
“[I]f a person aids and abets only an intended assault,
but a murder results, that person may be guilty of that
murder, even if unintended, if it is a natural and
probable consequence of the intended assault.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
“We ... reject Gonzales’s contention here that, as a
matter of law, simple assault cannot serve as the target
offense for murder liability under the natural and
probable consequences doctrine.” (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 300.)
P. v. Medina Expands Foreseeability
“Where are you from?”
“[A] verbal challenge by defendants (members of a street
gang) resulted in a fistfight between defendants and the
victim (a member of another street gang). After the
fistfight ended, one of the defendants shot and killed the
victim as he was driving away from the scene of the fight
with his friend.” (People v. Medina (2009) 46 Cal.4th
913, 916.)
No planning, no prior knowledge that a fellow gang
member was armed, and no prior gang rivalry
11
P. v. Medina Expands Foreseeability
“[T]he jury could reasonably have found that a
person in defendants’ position (i.e., a gang
member) would have or should have known that
retaliation was likely to occur and that escalation
of the confrontation to a deadly level was
reasonably foreseeable as Barba was retreating
from the scene.” (People v. Medina (2009) 46
Cal.4th 913, 922-923.)
Gang-Related Assaults
“Gang-related assaults, even those committed without
firearms, routinely escalate into shootings. In cases where
a murder arises out of such an assault, appellate courts
routinely conclude the evidence sufficiently supports the
jury’s implied finding the murder was a foreseeable
consequence of the assault. [Citations.]” (People v. Lara
(2017) 9 Cal.App.5th 296, 320.)
“While the assault was not gang related, ... [it] was carried
out by gang members against another gang member and,
most importantly, was an assault with a firearm.” (Id. at
321.)
Gang-Related Assaults
“There was no evidence (statistical or otherwise)
regarding the probabilities or frequencies of chance
encounters between gangs resulting in fights causing
death. The prosecution’s expert did not testify that
homicide is a natural consequence of a gang attack.
Although he testified some encounters do result in
brutal fights, he did not testify such fights always,
frequently, or even occasionally result in the death of a
participant. Moreover, the evidence suggested this was
a chance encounter rather than a planned ambush, …”
(People v. Godinez (1992) 2 Cal.App.4th 492, 503.)
12
NPC and Attempted Murder
Penal Code § 664(a)
Attempted murder: 5, 7, or 9 years in prison
Attempted premeditated murder: Life in prison
Attempted Premeditated Murder
Penal Code § 664(a) “constitutes a penalty
provision.” (People v. Favor (2012) 54 Cal.4th
868, 876.)
“[A]ttempted premeditated murder and attempted
unpremeditated murder are not separate offenses.
Attempted murder is not divided into different
degrees.” (Id. at 876.)
Attempted Premeditated Murder
“[A]ttempted murder – not attempted premeditated
murder – qualifies as the nontarget offense to which
the jury must find foreseeability. Accordingly, once
the jury finds that an aider and abettor, in general or
under the natural and probable consequences
doctrine, has committed an attempted murder, it
separately determines whether the attempted murder
was willful, deliberate, and premeditated.” (People
v. Favor (2012) 54 Cal.4th 868, 879-880, original
italics.)
13
Attempted Premeditated Murder
“Under the natural and probable consequences
doctrine, there is no requirement that an aider and
abettor reasonably foresee an attempted premeditated
murder as the natural and probable consequence of the
target offense. It is sufficient that attempted murder is
a reasonably foreseeable consequence of the crime
aided and abetted, and the attempted murder itself was
committed willfully, deliberately and with
premeditation.” (People v. Favor (2012) 54 Cal.4th
868, 880.)
Attempted Premeditated Murder
Petition for review granted in People v. Mateo,
nonpublished opinion, No. S232674
“This case presents the following issue: In order to
convict an aider and abettor of attempted willful,
deliberate and premeditated murder under the natural and
probable consequences doctrine, must a premeditated
attempt to murder have been a natural and probable
consequence of the target offense? In other words, should
People v. Favor (2012) 54 Cal.4th 868 be reconsidered in
light of Alleyne v. United States (2013) ___ U.S. ___ [133
S.Ct. 2151] and People v. Chiu (2014) 59 Cal.4th 155?”
No NPC First Degree Murder
“[A]n aider and abettor may not be convicted of
first degree premeditated murder under the natural
and probable consequences doctrine.” (People v.
Chiu (2014) 59 Cal.4th 155, 158-159, original
italics.)
Unlike with attempted murder, “premeditation and
deliberation as it relates to murder is an element of
first degree murder.” (Id. at 163.)
14
No NPC First Degree Murder, But …
Two caveats:
“Our holding in this case does not affect or limit an
aider and abettor’s liability for first degree felony
murder under section 189.” (People v. Chiu (2014) 59
Cal.4th 155, 166.)[See People v. Covarrubias (2016) 1 Cal.5th 838, 902, fn. 26.]
“Aiders and abettors may still be convicted of first
degree premeditated murder based on direct aiding
and abetting principles.” (Chiu at 166.)[See In re Brigham (2016) 3 Cal.App.5th 318.]
No Conspiracy NPC First Degree Murder
People v. Rivera (2015) 234 Cal.App.4th 1350
Chiu applies to both aiding and abetting and
conspiracy theories. So it was error under Chiu to
instruct the jurors that they could find the
defendant guilty of first degree murder as a natural
and probable consequence of the uncharged target
crime of conspiracy to discharge a firearm at an
occupied vehicle. First degree murder conviction
reduced to second degree.
Chui is Retroactive
“We hold Chiu is retroactive to convictions, such
as Petitioner’s, that were final on appeal when
Chiu was decided.” (In re Lopez (2016) 246
Cal.App.4th 350, 354.)
15
Killing by a Member of the Other Gang
“In this case involving violent criminal street
gangs, we must decide whether defendant was
properly convicted of the murders of two of his
fellow gang members even though he neither
personally killed them nor desired their deaths.”
(People v. Smith (2014) 60 Cal.4th 603, 606.)
Killing by a Member of the Other Gang
“The prosecution’s theory was that, although
defendant, a Gateway Posse member, and
members of the rival Pueblo Bishop gang
(including the actual gunmen) were normally
enemies, they cooperated in staging the jump out
and, in so doing, aided and abetted each other in
committing the target crimes of disturbing the
peace and assault or battery.” (People v. Smith
(2014) 60 Cal.4th 603, 611-612.)
Killing by a Member of the Other Gang
“The jury could also have reasonably found that all
of the possible shooters were aiders and abettors,
and therefore principals, in the target offenses.
Each juror could reasonably reject the possibility
that some stranger to the jump out happened to
come by at that moment and fired the fatal shots.”
(People v. Smith (2014) 60 Cal.4th 603, 619.)
16
Killing by a Member of the Other Gang
“Because, under the peculiar circumstances of the
case, a reasonable jury could find that a principal
or principals in the target crimes committed the
murders, and they were a reasonably foreseeable
consequence when defendant aided and abetted the
target crimes, we conclude that he was properly
convicted of them.” (People v. Smith (2014) 60
Cal.4th 603, 606.)
Independent Product of the Perp’s Mind
“To establish aiding and abetting liability under the
natural and probable consequence doctrine, the
prosecution must prove the nontarget offense was
reasonably foreseeable; it need not additionally prove
the nontarget offense was not committed for a reason
independent of the common plan to commit the target
offense.” (People v. Smith (2014) 60 Cal.4th 603,
614, original italics.)
CALCRIM 402 and 403 have been modified to
account for Smith.
Independent Product of the Perp’s Mind
“To be sure, whether an unintended crime was the
independent product of the perpetrator’s mind
outside of, or foreign to, the common design may,
if shown by the evidence, become relevant to the
question whether that crime was a natural and
probable consequence of the target crime.”
(People v. Smith (2014) 60 Cal.4th 603, 617,
original italics.)
17
Vagueness Challenge
Johnson v. United States (2015) 135 S.Ct. 2551
“By combining indeterminacy about how to measure the
risk posed by a crime with indeterminacy about how much
risk it takes for the crime to qualify as a violent felony, the
residual clause produces more unpredictability and
arbitrariness than the Due Process Clause tolerates.” (Id.
at 2258.)
Johnson might apply to California’s second degree felony
murder rule (see In re White (7/26/17, No. S233265) 2017
Cal. Lexis 5905) and the natural and probable
consequences doctrine.
The Kill Zone Theory
“Kill Zone” Defined
“A conviction for attempted murder under a kill zone
theory requires evidence that the defendant created a
kill zone; that is, while targeting a specific person he
attempted to kill everyone in the victim’s vicinity, or
he indiscriminately sought to kill everyone in a
particular area without having any primary target.”
(People v. Falaniko (2016) 1 Cal.App.5th 1234,
1244.)
18
Kill Zone is Not Shortcut to Att. Murder
“The kill zone theory is not a one-size-fits-all
shortcut to establishing the requisite mental state
for attempted murder, however.” (People v.
Falaniko (2016) 1 Cal.App.5th 1234, 1243.)
Kill Zone Theory
• The “kill zone” theory applies to attempted
murder only, not to murder.
• It’s a theory of specific intent to kill, not implied
malice.
• It’s a theory of concurrent intent to kill, not
transferred intent.
Specific Intent to Kill
“It is now well established that a specific intent to
kill is a requisite element of attempted murder, and
that mere implied malice is an insufficient basis on
which to sustain such a charge.” (People v. Lee
(1987) 43 Cal.3d 666, 670.)
By contrast, the mental state for implied malice is:
“‘I know my conduct is dangerous to others, but I
don’t care if someone is hurt or killed.’” (People
v. McNally (2015) 236 Cal.App.4th 1419, 1426.)
19
Specific Intent to Kill Each Person
“To be guilty of attempted murder, the defendant
must intend to kill the alleged victim, not someone
else. The defendant’s mental state must be
examined as to each alleged attempted murder
victim. Someone who intends to kill only one
person and attempts unsuccessfully to do so, is
guilty of the attempted murder of the intended
victim, but not of others.” (People v. Bland (2002)
28 Cal.4th 313, 328.)
Transferred Intent for Murder
“[T]he doctrine of transferred intent applies when the
defendant intends to kill one person but mistakenly
kills another. The intent to kill the intended target is
deemed to transfer to the unintended victim so that the
defendant is guilty of murder. [Citation.]” (People v.
Bland (2002) 28 Cal.4th 313, 317.)
“[T]his theory applies when the perpetrator intends to
kill one victim and unintentionally kills another.” (In
re Brigham (2016) 3 Cal.App.5th 318, 328, original
italics.)
No Transferred Intent for Att. Murder
“Someone who in truth does not intend to kill a
person is not guilty of that person’s attempted
murder even if the crime would have been murder –
due to transferred intent – if the person were killed.”
(People v. Bland (2002) 28 Cal.4th 313, 328.)
“[I]ntent to kill does not transfer to victims who are
not killed, and thus ‘transferred intent’ cannot serve
as a basis for a finding of attempted murder.”
(People v. Perez (2010) 50 Cal.4th 222, 232.)
20
Concurrent Intent to Kill Everyone
“[A]lthough the intent to kill a primary target does not
transfer to a survivor, the fact the person desires to
kill a particular target does not preclude finding that
the person also, concurrently, intended to kill others
within what it termed the ‘kill zone.’ ‘The intent is
concurrent . . . when the nature and scope of the
attack, while directed at a primary victim, are such
that we can conclude the perpetrator intended to
ensure harm to the primary victim by harming
everyone in that victim’s vicinity.’” (People v. Bland
(2002) 28 Cal.4th 313, 329, original italics.)
Concurrent Intent to Kill Everyone
“[T]he defendant concurrently intended to kill
everyone in A’s immediate vicinity to ensure A’s
death.” (People v. Bland (2002) 28 Cal.4th 313,
330.)
“[T]he intent required for attempted murder is to
kill rather than merely harm ....” (People v. Stone
(2009) 46 Cal.4th 131, 138, fn. 3.)
Instructional Error – Flurry of Bullets
Instructional error improperly allowed the jurors to
convict the defendant under a kill zone theory if
they found he specifically intended to kill only one
of several alleged victims. “The defendant who
targets a specific person by firing a flurry of
bullets into a crowd may nevertheless be convicted
of attempted murder if the evidence shows he
intended to kill everyone in the victim’s vicinity in
order to kill the intended victim.” (People v.
Falaniko (2016) 1 Cal.App.5th 1234, 1243.)
21
No Specific Target Required
“Can a person who shoots into a group of people,
intending to kill one of the group, but not knowing
or caring which one, be convicted of attempted
murder? Yes. The mental state required for
attempted murder is the intent to kill a human
being, not a particular human being.” (People v.
Stone (2009) 46 Cal.4th 131, 134, original italics.)
“Although a primary target often exists and can be
identified, one is not required.” (Id. at 140.)
No Specific Target Required, But . . .
That does not, however, result in an attempted
murder charge as to every person in the group
under a kill zone theory, unless the prosecution
proves the specific intent to kill everyone in the
zone, not just anyone in the zone. (People v. Stone
(2009) 46 Cal.4th 131, 138, fn. 3; People v.
Campos (2007) 156 Cal.App.4th 1228, 1241-
1243.)
Zone of Danger ≠ Kill Zone
Defendant fired two shots. DA charged four counts
of attempted murder. DA argued all four alleged
victims were in “the zone of danger.”
“While the instructions given by the trial court were
correct, the argument of the prosecutor concerning
how the jury could find appellant guilty of four
counts of attempted murder when only two shots
were fired was legally incorrect.” (People v.
Anzalone (2006) 141 Cal.App.4th 380, 392.)
22
Zone of Danger ≠ Kill Zone
“Contrary to the prosecutor’s argument, an
attempted murder is not committed as to all
persons in a group simply because a gunshot is
fired indiscriminately at them. The prosecutor’s
argument incorrectly suggests that a defendant
may be found guilty of the attempted murder of
someone he does not intend to kill simply because
the victim is in some undefined zone of danger.”
(People v. Anzalone (2006) 141 Cal.App.4th 380,
392-393.)
Endangerment ≠ Specific Intent to Kill
“[S]hooting at a person or persons and thereby
endangering their lives does not itself establish the
requisite intent for the crime of attempted murder.”
(People v. Perez (2010) 50 Cal.4th 222, 232.)
“The facts of this case do not establish that defendant
created a ‘kill zone’ by firing a single shot from a
moving car at a distance of 60 feet at the group of
eight individuals, notwithstanding that they were all
standing in relatively close proximity to one another.”
(Id. at 232.)
How Many Counts?
“[I]n order for defendant to be convicted of the
attempted murder of each of the [eight people] in
the group into which he fired the single shot, the
prosecution had to prove he acted with the specific
intent to kill each victim.” (People v. Perez (2010)
50 Cal.4th 222, 230, original italics.)
23
How Many Counts?
“On facts such as these, where the shooter
indiscriminately fires a single shot at a group of
persons with specific intent to kill someone, but
without targeting any particular individual or
individuals, he is guilty of a single count of
attempted murder.” (People v. Perez (2010) 50
Cal.4th 222, 225, original italics.)
How Many Counts?
The defendant fired at least five shots, killing one
person and wounding another.
“A correlation between the number of shots fired
and the number of victims in the alleged kill zone
is merely one relevant factor.” (People v. Cardona
(2016) 246 Cal.App.4th 608, 615, review granted.)
How Many Counts? Instructional Error
“The shooting took place in a crowded party, but
no witness testified that Cardona sprayed everyone
near Jauregui with gunfire. Without evidence of
an attempt by Cardona to kill everyone in a
particular area in order to kill Jauregui, it was error
for the trial court to give the kill zone instruction.”
(People v. Cardona (2016) 246 Cal.App.4th 608,
615, review granted.)
24
Side Note on “Review Granted”
(People v. Cardona (2016) 246 Cal.App.4th 608, 615,
review granted July 27, 2016.)
Review has been granted on Cardona, but it remains
published. It “has no binding or precedential effect,
and may be cited for potentially persuasive value
only.” (CRC 8.1115(e)(1); see also CRC 8.1105(e),
effective July 1, 2016.)
In the Line of Fire
The defendant fired a single shot into a car. He
could be convicted of attempted murder of the two
occupants in the bullet’s line of fire, but a not of a
third occupant who was out of the line of fire. “A
reasonable trier of fact could not find beyond a
reasonable doubt that appellant’s firing of a single
bullet constituted ‘lethal force designed and
intended to kill everyone’ in the Camry.” (People
v. Leon (2010) 181 Cal.App.4th 452, 466.)
In the Line of Fire ≠ Kill Zone
According to the prosecutor, “[t]he kill zone says
that anyone who is in the line of fire, anyone who
could have potentially been hit is a victim of that
attempted murder.” (People v. McCloud (2012)
211 Cal.App.4th 788, 801.)
“[T]he prosecutor’s argument was based on a
legally erroneous conception of the kill zone
theory.” (Ibid.)
25
Creating Risk of Death ≠ Kill Zone
“The kill zone theory thus does not apply if the evidence
shows only that the defendant intended to kill a
particular targeted individual but attacked that
individual in a manner that subjected other nearby
individuals to a risk of fatal injury. Nor does the kill
zone theory apply if the evidence merely shows, in
addition, that the defendant was aware of the lethal risk
to the nontargeted individuals and did not care whether
they were killed in the course of the attack on the
targeted individual.” (People v. McCloud (2012) 211
Cal.App.4th 788, 798, original italics.)
Risk of Death ≠ Kill Zone
“The kill zone theory consequently does not
operate as an exception to the mental state
requirement for attempted murder or as a means of
somehow bypassing that requirement. In a kill
zone case, the defendant does not merely subject
everyone in the kill zone to lethal risk. Rather, the
defendant specifically intends that everyone in the
kill zone die.” (People v. McCloud (2012) 211
Cal.App.4th 788, 798, original italics.)
How Many Counts?
“In order for the kill zone theory to support 46
attempted murder convictions in the manner
suggested by respondent, the record would have to
contain evidence that Stringer and McCloud tried
to kill the person who punched Stringer by killing
all 46 people in the area where Stringer’s assailant
was located. But the record contains no evidence
that Stringer or McCloud intended to kill 46
people with 10 bullets.” (People v. McCloud
(2012) 211 Cal.App.4th 788, 799.)
26
How Many Counts?
“The evidence that there were ‘dozens upon
dozens’ of people, densely packed together, in the
path of the bullets does constitute evidence that
those people’s lives were endangered. It does not,
however, constitute evidence that Stringer and
McCloud intended to kill more than one person per
bullet fired, let alone that they intended to kill
more than four people per bullet fired.” (People v.
McCloud (2012) 211 Cal.App.4th 788, 800-801,
original italics.)
How Many Counts?
“[T]he evidence is sufficient to support only eight
attempted murder convictions, because 10 shots
were fired but two of them killed victims Moses
and Taylor, for which Stringer was separately
convicted and punished.” (People v. McCloud
(2012) 211 Cal.App.4th 788, 807.)
Currently before the Cal. Supremes
People v. Canizales (2014) 229 Cal.App.4th 820
disagrees with McCloud.
Review granted 11/19/14. No. S221958
Fully briefed
“This case presents the following issue: Was the
jury properly instructed on the ‘kill zone’ theory of
attempted murder?”
