People v. Medina (2019) 33 Cal.App.5th 146 held that the judge erroneously gave the CALCRIM “kill zone” instruction (CC 600) because there was no evidence that the defendant had “a primary target” whom he attempted to kill:
For purposes of an attempted murder charge, intent to kill does not transfer to nontargeted individuals. Nonetheless, the kill zone theory … yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant’s ‘primary target.’ 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 ‘the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted individual was located. … 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.’” [Emphasis original.]
“[T]he kill zone instruction [CJ 600] is not appropriate in the absence of evidence indicating the defendant had a primary target, and the specific intent to kill everyone in the kill zone around the primary target to ensure the target’s death. The theory does not mean the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given.” In this case in which defendants fired into a crowd of people, there was no evidence there was a primary target, so the kill zone instruction should not have been given.” (In an unpublished portion of the opinion, the court finds the error harmless.)
Note: On April 3, the CSC heard oral argument on another case involving the “kill zone” instruction, People v. Canizales, No. S221958. An opinion can be expected by early July. See this post California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine March 30th, 2015
