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F 8.66.1 n1 Attempted Murder: Special Instruction On The “Kill Zone” Doctrine Is Unnecessary.
(See FORECITE F 8.66.1a.)
F 8.66.1 n2 Attempted Murder: Special Instruction On The “Kill Zone” Doctrine Is Biased And Prejudicial.
(See FORECITE F 8.66.1a for alternative language.)
F 8.66.1 n3 Attempted Murder: The Special CALJIC Instruction On The “Kill Zone” Doctrine Misleads The Jury On Mens Rea.
(See FORECITE F 8.66.1a.)
F 8.66.1a
Attempted Murder:
Modification Of “Killing Zone” Instruction
Alternative # 1:
The Bland opinion [People v. Bland (2002) 28 C4th 313] specifically notes that no special instruction is necessary on this point. (See below.) Thus, one option is simply to retract the instruction.
Alternative # 2:
*Replace the language the CJ language with the following:
A necessary element of attempted murder is that the defendant must have intended to kill the alleged victim. However, a person who primarily intends to kill one person may also intend to kill another person or persons at the same time. The defendant’s intent and mental state must be examined as to each alleged attempted murder victim.
You may not vote to convict the defendant of attempted murder as to any alleged victim unless you find beyond a reasonable doubt that the defendant intended to kill that victim.
Points and Authorities
CJ 8.66.1 is deficient because use of the term “kill zone” is biased and prejudicial (see below) and because it unconstitutionally substitutes an inference of intent for the required actual intent. (See below.) The above instruction is intended to cure these defects.
The first and third sentences are adapted from the holding in People v. Bland (2002) 28 C4th 313. The second sentence is a statement of law taken from the current instruction with the unnecessary argumentative terminology removed and the word “defendant” inserted in place of “perpetrator.” The fourth sentence is necessary to assure that the jury does not convict without finding the requisite intent to kill as to each alleged victim. (See Fiore v. White(2001) 531 US 225, 228-29 [148 LEd2d 629; 121 SCt 712]; Carella v. California (89) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419].)
Attempted Murder: Special Instruction On The “Kill Zone” Doctrine Is Unnecessary
In the Bland [People v. Bland (2002) 28 C4th 313] opinion, the California Supreme Court recognized that the “concurrent intent” concept was simply a manner of arguing mens rea, not a distinct or unusual legal theory. The Court cautioned against a special instruction: “This concurrent intent theory is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case . . .” (28 C4th at 331, fn. 6.)
Hence, a special “kill zone” instruction is unnecessary. If an instruction is given the CJ version should be modified as set forth above.
Attempted Murder: Special Instruction On The “Kill Zone” Doctrine Is Biased And Prejudicial
In its language, new CALJIC 8.66.1 is biased because it incorporates and endorses an argumentative term (“kill zone”) to no legitimate purpose. Like such terms as “execution style” or “serial killer,” terms such as “kill zone” have no place in a neutral instruction. Consider the first two sentences of the instruction with the following emphasis:
“A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the `kill zone.'”
The regular portion contains the legal point. The underlined language adds nothing to the legal point except to introduce argumentative terminology and improperly endorse a prosecutorial viewpoint.
Attempted Murder: The Special CALJIC Instruction On The “Kill Zone” Doctrine Misleads The Jury On Mens Rea
As noted, the Bland [People v. Bland (2002) 28 C4th 313] opinion’s holding is that “To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else.” (28 C4th at 328.) Instead of this language, CALJIC 8.66.1 substitutes the following:
“The intent is concurrent when the nature and scope of the attack, although directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.”
This language improperly (and, perhaps, unconstitutionally) substitutes an inference of intent for the actual intent element. At best, this is confusing and misleading. At worst, it is unconstitutional. (See Fiore v. White (2001) 531 US 225 [148 LEd2d 629; 121 SCt 712]; Carella v. California (89) 491 US 263 [105 LEd2d 218; 109 SCt 2419]; People v. McCall (2004) 32 C4th 175; see also FORECITE PG VII(C)(1).)
F 8.66.1b
Attempted Murder:
Specification Of Prosecution’s Burden Of
Proof As To “Kill Zone” Doctrine
*Add to CJ 8.66.1:
If you have a reasonable doubt whether [the] [a] defendant intended to kill ____________(insert name(s) of victim(s) charged in attempted murder count(s) on concurrent-intent theory) or intended to kill ____________ (insert name of primary target alleged) by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of ____________ (insert name(s) of victim(s) charged in attempted murder count(s) on concurrent-intent theory).]
Points and Authorities
The fact that a person desires to kill a particular target does not preclude finding that the person also concurrently intended to kill others within a “kill zone.” (People v. Bland (2002) 28 C4th 313, 327.) “Where the means employed to commit the crime against a primary victim creates a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.” (Id. at p. 330.)
Thus, when liability is predicated on the Bland “kill zone” doctrine, there is a dual intent to kill requirement which is a factual issue for the jury to decide: (1) intent to kill the primary victim and (2) intent to kill any person in the “kill zone.” (See e.g., CJ 8.66.1.) The instructions should assure that the jurors understand the burden of proof applicable to the “kill zone” doctrine. (See EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see also FORECITE PG III(D)&(E).) Accordingly, as with other specific evidentiary showings that go to an element of the offense (e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15), the defendant has a right, upon request, to instruct the jury that he “need only raise a reasonable doubt as to the existence or non-existence of the fact in issue.” (See People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 600 [Attempted Murder].