Brief Bank # B-964 (Re: F 8.66 n16 [Attempted Murder: Transferred Intent Not Applicable].)
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Date of Brief: September, 2002.
II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN INSTRUCTION THE JURY THAT THEY COULD CONSIDER TRANSFERRED INTENT IN DETERMINING THE INTENT TO KILL.
The prosecutor asked for a jury instruction on transferred intent and trial counsel objected to this instruction. (RT 1515-17.) The trial court agreed that this instruction should not be given. (RT 1517-18.) Nevertheless, the court did give the jury the instruction on transferred intent. (RT 1578; CT 204.) “When one attempts to kill a person, but by mistake or inadvertence kills another person, the crime, if any so committed is the same as though the person originally intended to be killed had been killed.” The court made sure the jury applied this instruction to the crime of attempted murder by adding: “and that would apply to attempted, as well.” (RT 1578.)
The prosecution relied on this theory in her closing argument.
He went there to shoot at someone and when you shoot at people, you kill them.
So he had formed his intent to shoot at someone and to kill someone before he went and what happened is he got there and there was some extra people there, but during the course of events he made some decision and you do have in an instruction in there that’s called transferred intent.
The legal rule of transferred intent or, ‘whoops, I shot the wrong guy,’ and if, for example, I fire a gun at you and the bullet missed you and hits the guy behind, I go, ‘I didn’t mean to kill him, I meant to kill you.’
Do I get off?
It is not — premeditated is it not malicious because I didn’t mean to kill him?
No I went to kill someone, so we transfer that intent to whoever’s the victim.
Same for mistaken identity. “I didn’t mean to shoot you, I thought you were Joe. I meant to kill Joe. You look just like him.’
The intent is still there, doesn’t matter who the ultimate target, none of this, whoops, I shot the wrong guy stuff because as we know, gang members are notoriously bad shots and lots of people who are not the intended victims get shot. They don’t get off. They are responsible for the victim and the results based on their intent towards whomever their target was.” (RT 1811.)
This was error. On July 1, 2002, the California Supreme Court decided People v. Bland (2002) 28 Cal. 4th 313 which held that it was reversible error to instruct the jury on the doctrine of transferred intent in a case of attempted murder. The defendant’s guilt of attempted murder had to be judged separately as to each alleged victim.
“Intent to kill . . . does not apply to an inchoate crime like attempted murder. A person who intends to kill only one is guilty of the attempted (or completed) murder of that one but not also of the attempted murder of others the person did not intend to kill. Thus, in this case, whether defendant is guilty of the attempted murder of the two surviving victims depends on his mental state as to those victims and not on his mental state as to the intended victim. (Id. at p. 317.)
Bland was yet another gang shooting. The defendants shot at the driver of a car who identified himself to the defendant as a member of the wrong brand of “Crips.” The intended victim, the driver, was killed; his two passengers who were not gang members, but chose the wrong day and time to go along for the ride, were shot, but survived. (People v. Bland, supra, 28 Cal. 4th at pp. 318-19.) The Court pointed out that “one possible interpretation of the evidence is that defendant intended to kill the one he and his cohort did kill–Wilson, the rival gang member–but he did not specifically target nonmembers Morgan and Simon.” (Id. at p. 319.) To the prosecutor this distinction was meaningless. As he argued to the jury, “The intent, as we say in the law, follows the bullet; wherever you are pointing it, that’s where it goes.” (Ibid.) After defense counsel pointed out the evidence showed the defendant had no malice towards the passengers of the car, the prosecutor responded in his final summation: “An attempt follows the bullets, kills a different person, the crime so committed is the same as though you originally had given that intended target. The law does not excuse bad marksmanship or hitting other people.” (Ibid.) The prosecution asked for and got the jury instructed on transferred intent. When the jury indicated during deliberations that they were having difficulty in finding premeditation as to shooting of the passengers in the car, the judge directed the jury’s attention to CALJIC 8.65, once again. (Id. at p. 320.)
In reversing, the Court looked at the critical difference between murder and attempted murder. The malice required for a murder conviction can be express or implied, whereas the malice prerequisite for a conviction of attempted murder must always be express.
“Murder does not require the intent to kill. Implied malice –a conscious disregard for life–suffices. [citation] But over a century ago, we made clear that implied malice cannot support a conviction of an attempt to commit murder. ‘To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend.’ [Citations omitted.].” (People v. Bland, supra, 28 Cal. 4th at pp. 327-28.)
In a prosecution for attempted murder, the intent of the perpetrator must be examined as to each individual victim. It is not enough for the prosecution to prove that the defendant intended to kill someone. The required express malice must be proven beyond a reasonable doubt as to each separate victim.
“We should also distinguish between a completed murder and attempted murder regarding transferred intent. 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. 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, supra, 28 Cal. 4th at p. 328.)
This rule of law does not mean that a defendant who shoots at a group of people escapes criminal responsibility for those who may have been unintentionally wounded. Rather it means that he should be convicted of a lesser crime, such as assault with a firearm. (People v. Bland, supra, 28 Cal. 4th at p. 329.)
In examining the record for prejudice, the Court looked to see “whether there is a ‘reasonable likelihood’ that the jury understood the charge as the defendant asserts. [citation].” (People v. Bland, supra, 28 Cal. 4th at p. 332.) It was argued that CALJIC 8.65 “‘could not have been applied by the jury to transfer intent from Wilson to either Morgan or Simon.’ Rather its language transferred intent only to a person actually killed.” (Ibid.) The Court agreed that the jury was properly told that the doctrine of transferred intent only applied to the murder charge. (Ibid.) Therefore, this error was not prejudicial. (Id. at p. 333.)
This case, however, presents an entirely different scenario. The trial court stated that it would not instruct the jury on transferred intent, but then it did just that. (RT 1517-18, 1578.) Not only did it give the instruction on transferred intent, but the trial court went on to gratuitously add: “and that would apply to attempted, as well.” (RT 1578, emphasis added.) The judge specifically told this jury to apply the doctrine of transferred intent to attempted murder.
The prosecutor relied on this doctrine of transferred intent as proof of malice:
He went there to shoot at someone and when you shoot at people, you kill them.
So he had formed his intent to shoot at someone and to kill someone before he went and what happened is he got there and there was some extra people there, but during the course of events he made some decision and you do have in an instruction in there that’s called transferred intent.
The legal rule of transferred intent or, ‘whoops, I shot the wrong guy,’ and if, for example, I fire a gun at you and the bullet missed you and hits the guy behind, I go, ‘I didn’t mean to kill him, I meant to kill you.’
Do I get off?
It is not — premeditated is it not malicious because I didn’t mean to kill him?
No I went to kill someone, so we transfer that intent to whoever’s the victim. . .
The intent is still there, doesn’t matter who the ultimate target, none of this, whoops, I shot the wrong guy stuff because as we know, gang members are notoriously bad shots and lots of people who are not the intended victims get shot. They don’t get off. They are responsible for the victim and the results based on their intent towards whomever their target was.” (RT 1811.)
Both counts of attempted murder should be reversed. Neither Mr. G nor his helper Mr. J were the intended targets. The error was especially prejudicial as to count two, the attempted murder of Mr. J. The shooting target was the rival gang member, Chimp, who was standing right next to the truck when the shots began. Mr. J sat on the passenger side close by where Chimp stood. (RT 635.) The bullet casing was recovered there, adjacent to the driveway at the front of the tow truck. (RT 1235.) There was a fragment of a bullet that was found in the door of the tow truck and another found underneath it. (RT 1238-39.) There were no casings or bullet fragments located in the interior of the truck. These facts point to the conclusion that the shots that hit Mr. J were actually directed towards Chimp, as he stood next to the tow truck door when the shots began. It is also consistent with Mr. J’s injuries to his hands which may have been outside of or next to the door of the truck when the bullet meant for Chimp hit him in the hand. (RT 642.)
The fact that the prosecutor was able to argue the doctrine of transferred intent applied to the attempted murders meant that she was not required to prove express malice beyond a reasonable doubt. Express malice is a necessary element for the crime of attempted murder. This error allowed appellant’s conviction to be predicated on something less than proof beyond a reasonable doubt of a critical element of the charge of attempted murder, in violation of the due process clause of the Fourteenth Amendment. (Neder v. United States (1999) 527 U.S. 1, 8-10; United States v. Gaudin (1995) 515 U.S. 506, 526; Francis v. Franklin (1985) 471 U.S. 307, 313). This error also deprived appellant his right under the Sixth Amendment to have a jury determine the truth of each and every element of the offense. (Sullivan v. Louisiana (1993) 508 U.S. 275, 283.) Reversal is mandated.
