California Supreme Court Poised to Weigh In Again on the “Kill Zone” Doctrine.
March 30th, 2015


In People v. Canizales, S221958 (E054056; 229 CA 4th 820) the defendant filed a petition for review which framed the question presented as follows:


In a criminal case charging attempted murder of a victim who was not killed or even injured, is it error to instruct the jury with a kill-zone instruction if there is evidence that, in order to kill a primary target, the defendant used lethal force that created a risk of death to persons around the primary target, but no evidence that the defendant used lethal force designed and intended to kill everyone in an area around the primary target?


The Court of Appeal in Canizales disagreed with another published opinion, People v. McCloud (2012) 211 Cal.App.4th 788 which held that it is error to give a kill zone instruction when there is no evidence that the defendant used lethal force designed and intended to kill everyone in an area around the primary target. It stated, “The kill zone theory … 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.” (Id. at 798, italics in original.) On the other hand, the Canizales Court of Appeal concluded that the kill-zone instruction was properly given because “five bullets were fired,” and “the jury could reasonably infer that [appellant] used a means to kill Pride that inevitably would result in the death of other victims within the zone of danger.”


When granting review the Court stated that the case presents the following issue: “Was the jury properly instructed on the ‘kill zone’ theory of attempted murder?


It remains to be seen how broadly the Court will rule on the “kill zone” concept in Canizalves. However, as previously discussed in Forecite there are many other potential problems with the current CALCRIM instruction (CC 600) on this doctrine:


See e.g.,


F 600.2 Inst 2 The Actus Reus And Intent Elements Of CC 600 Do Not Accurately Reflect The Elements Of Attempted Murder Prosecuted Under A “Kill Zone” Theory


F 600.2 Inst 3 Multiple Counts Based On Firing A Single Shot – CALCRIM 600 Should Be Tailored To Reflect The Factual Elements Of The Kill Zone Theory*


F 600.2 Inst 4 Tailoring To Facts: CC 600 Should Name The Defendant And Alleged Victim


Accordingly, it may be appropriate to preserve any such kill zone issues pending the decision in Canizales.

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