SERIES 600 ATTEMPTED MURDER
F 600 ATTEMPTED MURDER (Case Law Discussing This Instruction)
TABLE OF CONTENTS
F 600.1 TITLES AND IDENTIFICATION OF PARTIES
F 600.1 Inst 1 Attempted Murder—Title
F 600.1 Inst 2 Identification Of Prosecution And Defendant
F 600.2 ATTEMPTED MURDER—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 600.2 Inst 1 Tailoring To Facts
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
F 600.3 ATTEMPTED MURDER—LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 600.3 Inst 1 Deletion Of Argumentative Language
F 600.3 Inst 2 Jurors May Consider Fact That Victim Was Not Killed
F 600.4 ATTEMPTED MURDER—BURDEN OF PROOF ISSUES
F 600.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 600.4 Inst 2 Modification Of Burden Shifting Language
F 600.5 ATTEMPTED MURDER—ELEMENTS AND DEFINITIONS
F 600.5 Inst 1 Concurrence Of Act And Intent
F 600.5 Inst 2 (a & b) Attempted Murder: Modification Of “Killing Zone” Instruction
F 600.5 Inst 3 The CALCRIM Instructions Fail To Make It Clear That Absence Of Passion/Quarrel And Absence Of Imperfect Defense Are Prerequisites Which The Jurors Must Find Before Convicting The Defendant Of Murder Or Attempted Murder
F 600.5 Inst 4 Primary vs. Secondary Target
F 600.6 ATTEMPTED MURDER—DEFENSE THEORIES
F 600.6 Inst 1 Defense Theory That Intent To Kill Cannot Be Presumed From Commission Of A Dangerous Crime (PC 664 & PC 187)
F 600.7 ATTEMPTED MURDER—PRELIMINARY FACT ISSUES [RESERVED]
F 600.8 ATTEMPTED MURDER—UNANIMITY/DUPLICITY/MULTIPLICITY [RESERVED]
F 600.9 ATTEMPTED MURDER—LESSER OFFENSE ISSUES [RESERVED]
Return to Series 600 Table of Contents.
F 600.1 Titles And Identification Of Parties
F 600.1 Inst 1 Attempted Murder—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 600.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 600.2 Attempted Murder—Tailoring To Facts: Persons, Places, Things And Theories
F 600. Inst 1 Tailoring To Facts
*Modify CC 600, Elements 1 and 2 as follows:
[Replace “another person” and “person” with _______________ <name of decedent>]
Points and Authorities
See FORECITE F 820.2 Inst 1.
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
*When the prosecution relies on “concurrent intent”/”kill zone” theories, tailor the elements of CC 600 as follows [added language is underlined; deleted language is stricken]:
1. The defendant took at least one direct but ineffective step toward killing (another person/ [or] a fetus) every one of the following persons at the same time;
_________ < __________> (Count <insert Count #>
_________ < __________> (Count <insert Count #>
<list all alleged victims from counts charged under the “kill zone” theory>
AND
2. The defendant intended to kill that (person/ [or] fetus) [every person] [named] [or] [described] in Element 1 at the same time.
[If you have a reasonable doubt as to whether either of the above elements has been proved beyond a reasonable doubt you must vote to return a verdict of not guilty on Counts ____ <insert all “kill zone” counts>.
However, you may return a verdict of guilty for one or more individual count(s), and not others, if all jurors unanimously agree that the prosecution has proved the following elements beyond a reasonable doubt as to the count(s) as to which the guilty verdict is returned:
1. The defendant took at least one direct but ineffectual step toward killing the person identified as the alleged victim; and
2. The defendant intended to kill that person.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank #CCM-001.]
The CALCRIM Deficiency – When multiple counts are alleged based on a “concurrent intent” (“kill zone”) theory the prosecution’s burden of proof extends to “everyone” in the “kill zone.” (See People v. Bland, supra, 28 C4th at 329-30; see also People v. Stone, supra, 46 C4th at 136, fn. 3.) Thus, it is not enough to simply prove that the defendant “took at least one direct but ineffectual step toward killing [] another person . . . ” [emphasis added] as provided in Element 1 of CALCRIM’s stock attempted murder instruction (CC 600). As explained by Justice Werdegar in her concurring opinion in People v. Perez (2010) 50 C4th 222, 235, the “kill zone”cases require an attack that is “a direct act toward [killing everyone within a particular area or group].”
Similarly, the stock language in Element 2 of CC 600 fails to convey the required intent for liability under a “kill zone” prosecution. It is not enough that the defendant intended to kill “another person” – there must be an “intent to kill everyone” within the kill zone. (People v. Perez, 50 C4th at 235, concurring opn.
The CALCRIM Deficiency Should Be Corrected By Tailoring The Stock Language In The Instruction – The CC 600 Bench Notes maintain that no modification of the standard attempted murder instruction is required when the defendant is charged with multiple counts under the so-called “kill zone” theory. However, neither Bland nor subsequent “kill zone” cases have approved use of the stock elements of CC 600 in a “kill zone” prosecution. It is true that a footnote in Bland concluded that “This concurrent intent theory is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent.” (Id. at 331, fn. 6.) However, even assuming that no “special” instruction is required, the judge still has a duty to tailor stock instructions to reflect the facts and theories presented at trial. The judge may not properly “refuse[] to tailor [an] instruction to the facts of the case.” (People v. Hall (1980) 28 C3d 143, 159; see also People v. Randle (1992) 8 CA4th 1023, 1036-37 [judge properly granted D.A.’s request to tailor CJ 2.06]; People v. Woods (1991) 226 CA3d 1037, 1054-55 [court has duty to “tailor instructions to fit the facts”]; U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286 [buyer-seller instruction should be tailored to the facts].) [See also, PG V(A)(3)(a), Duty to Tailor Standard Form Instructions To Reflect The Facts And Legal Theories Presented At Trial.]
Accordingly, Elements 1 and 2 of CC 600 should be tailored to reflect the factual requirements for conviction under a “kill zone” theory.
CC 600 Should Also Be Tailored To Identify Or Describe All The Alleged Victims – CC 600 generally sets forth the elements of attempted murder without tailoring those elements to the specific alleged victims. This format is inconsistent with other CALCRIM instructions which provide for insertion of the name of the victim so that the elements of the charge are tailored to the facts. (See, e.g., CC 505-511; CC 560-61; CC 724-728; CC 733-737; CC 830-31; CC 925-938; CC 2962-2965.) Moreover, as discussed above, the judge is required to “tailor instructions to fit the facts.” (People v. Woods, supra, 226 CA3d at 1054-55)
Furthermore, tailoring the instructions to include specific identification of the victims is especially important when multiple counts of attempted murder are alleged. “Guilt of attempted murder must be judged separately as to each alleged victim.” (People v. Bland, supra, 28 C4th at 331; see also People v. Perez, supra, 50 C4th at 230.) This requirement is not expressly conveyed to the jurors by the current un-tailored version of CC 600.
The Attempt Must Be Directed Toward Killing All The Alleged Victims “At The Same Time” – Because the proposed instruction does not use the exact appellate language – “. . . kill everyone in the ‘kill zone'” – addition of the words “at the same time” is suggested to avoid any potential ambiguities as to the required actus reus and mens rea. (See, e.g., CC 600, paragraph 5, sentence 1.)
Additional Language When The Prosecution Relies On An Alternative “Non-Kill Zone” Theory – When the “kill zone” formulation is the only prosecution theory then the verdict should theoretically be all-or-nothing – the defendant is either guilty on all counts or none. However, in many cases there may be an alternative “non-kill zone” theory of guilt upon which the jurors could convict the defendant on an individual count or counts. (See e.g., People v. Perez, supra, 50 C4th at 230 [7 of 8 counts reversed due to insufficient evidence of intent to kill all 8 alleged victims but one count affirmed because the evidence was sufficient to establish that the defendant intended to kill “someone” in the group he fired upon].) Similarly, in cases where the prosecution alleges that one victim was the primary target – and the other alleged victims secondary targets – the jurors might reasonably return a guilty verdict as to the primary victim yet reject the “kill zone” theory as to the others. Accordingly, where a “non-kill zone” alternative theory of guilt is presented, the last two bracketed paragraphs in the proposed instruction may be appropriate.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITECG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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*
* CAVEAT: When the defendant fired a single bullet into a group of people a “kill zone” theory may not be warranted unless there is evidence from which to reasonably infer that the single bullet could have killed everyone in the group. (People v. Perez (2010) 50 C4th 222.)
*When the prosecution relies on a “concurrent intent”/”kill zone” theory, tailor the elements of CC 600 as follows [added language is underlined; deleted language is stricken]:
1. The defendant fired a single bullet from a ________ <describe firearm>;
2. The firing of the single bullet was a direct but ineffective step toward killing (another person/ [or] a fetus)every one of the following persons at the same time;
_________ <__________>( Count <insert Count #>
_________ < __________> (Count <insert Count #>
<list all alleged victims from counts charged under the “kill zone” theory >
AND
3. The defendant intended to kill that (person/ [or] fetus) every person [named] [or] [described] in Element 1 at the same time.
[If you have a reasonable doubt as to whether either of the above elements has been proved beyond a reasonable doubt you must vote to return a verdict of not guilty on Counts ____ <insert all “kill zone” counts>.
However, you may return a verdict of guilty for one or more individual count(s), and not others, if all jurors unanimously agree that the prosecution has proved the following elements beyond a reasonable doubt as to the count(s) as to which the guilty verdict is returned:
1. The defendant took at least one direct but ineffectual step toward killing the person identified as the alleged victim; and
2. The defendant intended to kill that person.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank #CCM-001.]
Propriety Of Tailoring CC 600 In Single Shot Cases – Without tailoring CC 600 is too general to accurately convey the nuances of both the mens rea and actus reus of attempted murder in situations where the defendant who fired only a single shot is charged with multiple counts under Bland‘s concurrent intent (“kill zone”) formulation. As People v. Perez (2010) 50 C4th 222, 232-34 emphasized, a single shot situation is much different from the classic “kill zone” case. The “kill zone” theory applies in situations where the defendant (1) intended to kill everyone in the group, and (2) the defendant committed or planned to commit an act which was “directed toward” killing everyone in the group or area. As explained by Justice Werdegar in her concurring opinion in People v. Perez (2010) 50 C4th 222, 235, the “kill zone”cases require an attack that is “a direct act toward [killing everyone within a particular area or group].” Thus, it is not enough to simply prove that the defendant “took at least one direct but ineffectual step toward killing [] another person . . . ” [emphasis added] as provided in Element 1 of CALCRIM’s stock attempted murder instruction (CC 600).
Similarly, the stock language in Element 2 of CC 600 fails to convey the required intent for liability under a “kill zone” prosecution. It is not enough that the defendant intended to kill “another person . . .” – there must be an “intent to kill everyone” within the kill zone. (People v. Bland (2002) 28 C4th 313, 329-30; see also People v. Stone (2009) 46 C4th 131,136, fn. 3; People v. Perez, 50 C4th at 235, concurring opn.)
The CALCRIM Deficiency Should Be Corrected By Tailoring The Instruction – See FORECITE F 600.2 Inst 2.
Propriety Of Tailoring For Other Acts Which May Or May Not Have Been Capable Of Killing Everyone In The Group – See FORECITE F 600.2 Inst 2.
Tailoring CC 600 To Identify Or Describe All The Alleged Victims – See FORECITE F 600.2 Inst 2.
Use Of The Term Defendant – The instruction proposed above uses the term “defendant” rather than the defendant’s actual name. (See FORECITE F 100.2 Inst 3.)
If Paragraph 5 Of CC 600 is Given It Should Be Modified – The instruction proposed above sets forth the “kill zone” elements without the necessity of any further explanation. Thus, Paragraph 5 of CC 600 should be omitted as surplusage. However, if the judge decides that Paragraph 5 should be given, it should be modified. (See FORECITE F 600.5 Inst 4.)
Modified Kill Zone Instruction When Jurors Could Find Attempted Murder As To Some But Not All Of The Person In The “Kill Zone” – See FORECITE F 600.2 Inst 2.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 600.2 Inst 4 Tailoring To Facts: CC 600 Should Name The Defendant And Alleged Victim
*Modify CC 600, paragraphs 1 and 2 and Elements 1 and 2 as follows [added language is underlined; deleted language is stricken]:
Alternative a [provide separate instructions using the form below for each count of attempted]:
The defendant _________ <insert name of defendant> is charged in [Count ___] with attempted murder.
To prove that the defendant _________ <insert name of defendant> is guilty of attempted murder, the People must prove that:
1. The defendant _________ <insert name of defendant> took at least one direct but ineffective step toward killing (another person/ [or] a fetus) _________ <insert name of alleged ictim for this count>;
AND
2. The defendant intended to kill that (person/ [or] fetus) _________ <insert name of alleged victim for this count>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank #CCM-001.]
CC 600 Should Be Tailored To Identify The Alleged Victim – See FORECITE F 600.2 Inst 2.
Improper To Refer To The Accused As “The Defendant” – See FORECITE F 100.2 Inst 3.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 600.3 Attempted Murder—Language That Is Argumentative, Confusing, Etc.
F 600.3 Inst 1 Deletion Of Argumentative Language
*Delete CC 600 paragraph 6 which provides:
<p[The defendant may be guilty of attempted murder even if you conclude that murder was actually completed.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 600.3 Inst 2 Jurors May Consider Fact That Victim Was Not Killed
*Add to CC 600, paragraph 6, if it not deleted (but see FORECITE F 600.3 Inst 1):
However, the fact that the murder was not actually completed is a circumstance to consider in determining whether the prosecution has proven the defendant guilty of attempted murder.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 600.4 Attempted Murder—Burden Of Proof Issues
F 600.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 600.4 Inst 2 Modification Of Burden Shifting Language
*Replace CC 600, paragraph 2, sentence 2, with the following:
On the other hand, unless the defendant intended to kill [_____________<name of decedent>] [_____________<specify alleged fetus>] when (he/she) allegedly took a direct step toward killing [ _____________<name of decedent>] [_____________<specify alleged fetus>] the defendant is not guilty of attempted murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
The CALCRIM Deficiency: Burden Shifting—CALCRIM 600 erroneously implies that the defendant is obligated to establish that he or she “freely and voluntarily abandoned” the planned killing. (See FORECITE F 401.6 Inst 1.)
See also FORECITE F 404.2 Inst 1; F 100.1 Inst 1.
Use Of The Term “Defendant” — The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.— To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 600.5 Attempted Murder—Elements And Definitions
F 600.5 Inst 1 Concurrence Of Act And Intent
*Replace CC 600, Element 2, with the following:
2. The defendant did so with the intent to kill [ _____________<name of decedent>] [_____________<specify alleged fetus>].
Points and Authorities
See FORECITE F 251 Inst 3.
F 600.5 Inst 2 (a & b) Attempted Murder: Modification Of “Killing Zone” Instruction
Alternative a:
[Delete “kill zone” instruction.]
The Bland opinion [People v. Bland (2002) 28 CA4th 313] specifically notes that no special instruction is necessary on this point. (See below.) Thus, one option is simply to delete the instruction.
Alternative b:
*Replace the language the CC 600 paragraph 5 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
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
The CALCRIM Deficiency: Prejudicial “Kill Zone” Language-CALCRIM 600 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 CA4th 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 (1989) 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 CA4th 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 CA4th 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, CC 600 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 italicized language adds nothing to the legal point except to introduce argumentative terminology and improperly endorse a prosecutorial viewpoint.
Use Of The Term “Defendant” —The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities, and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE
CG 13.
CALJIC NOTE: See FORECITE F 8.66.1a.
Case Law Note—People v. Campos (2007) 156 CA4th 1228 [generally approving CALCRIM 600 but suggesting that the “kill zone” doctrine is ambiguous because it says that the perpetrator of an attempted murder must intend to kill “anyone” in the kill zone, then later says the perpetrator must intend to kill by harming “everyone” in the kill zone]. [This problem was addressed in the August 2009 revision of CC 600.]
F 600.5 Inst 3 The CALCRIM Instructions Fail To Make It Clear That Absence Of Passion/Quarrel And Absence Of Imperfect Defense Are Prerequisites Which The Jurors Must Find Before Convicting The Defendant Of Murder Or Attempted Murder
See FORECITE F 520.6 Inst 1.
F 600.5 Inst 4 Primary vs. Secondary Target
Option A: Primary And Secondary Targets
*Modify CC 600, paragraph 5, as follows [added language is underlined; deleted language is stricken]:
A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular group or area zone of harm or “kill zone.”. The prosecution contends that the defendant intended to kill both _______________<insert name or description of targeted victim> and everyone listed in Element 1, below, at the same time. In order to convict the defendant of the attempted murder of ________ <insert name or description of targeted victim> and the persons listed in Element 1, below, ________<insert name(s) or description(s)of victim charged in attempted murder count[s] on concurrent-intent theory>, the People must prove:
1. The defendant took a direct but ineffective step toward killing _______________<insert name of targeted victim> and every one of the following persons at the same time:
_______________ <____________> (Count < insert Count #)
_______________ <____________> (Count < insert Count #)
<list all alleged victims from counts charged under the “kill zone” theory>
AND
2. That The defendant not only intended to kill ________ <insert name of primary target alleged> but also either intended to kill [every person][named] [or] [described] in Element 1 at the same time. or intended to kill everyone within the kill zone.
If you have a reasonable doubt whether the defendant intended to kill every one of the persons listed above in Element 1 above at the same time ________<insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory> or intended to kill ____________<insert name or description of primary target alleged> by killing everyone in the kill zone listed in Element 1, above, at the same time, then you must find the defendant not guilty of the attempted murder of ________ <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>.
Option B: No Primary Target
*Modify CC 600, paragraph 5, as follows [added language is underlined; deleted language is stricken]:
A person may intend to kill a specific victim or victims and at the same time intend to killeveryone in a particular group or area zone of harm or “kill zone.” The prosecution contends that the defendant intended to kill, every person listed in Element 1, below, at the same time. In order to convict the defendant of the attempted murder of the persons listed in Element 1 ________<insert name(s) or description(s)of victim charged in attempted murder count[s] on concurrent-intent theory>, the People must prove:
1. The defendant took a direct but ineffective step toward killing every one of the following persons:_________ <insert names or description(s) of victim charged in attempted murder count[s] on concurrent-intent theory>
AND
2. That The defendant not only intended to kill________ <insert name of primary target alleged> but also either intended to kill everyone within the kill zone listed in Element 1, above, at the same time.
If you have a reasonable doubt whether the defendant intended to kill everyone listed in Element 1 above at the same time _________<insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory_< or intended to kill _____________<insert name or description of primary target alleged< by killing everyone in the kill zone then you must find the defendant not guilty of the attempted murder of________ <insert names or descriptions of victims charged in attempted murder count[s] on concurrent-intent theory<.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank #CCM-001.]
If Paragraph 5 Of CC 600 Is Given It Should Be Modified – As discussed in FORECITE F 600.2 Inst 2, when the prosecution proceeds under a “kill zone” theory the stock elements of CC 600 should be tailored to reflect the “kill zone” theory. However, there is no reason why a special “kill zone” instruction could not also be given provided the basic elements are modified as set forth in F 600.2 Inst 2 and the special instruction is modified as set forth below.
Use Of The Term “Kill Zone” Is Neither Necessary Nor Desirable – As discussed above, the cases define the actus reus of attempted murder (Element 1 in CC 600) as a direct but ineffectual step toward killing “everyone” in the “kill zone.” However, this exact appellate court language is not suitable for a jury instruction on the concurrent intent formulation. (See generally Delos v. Farmers Ins. (1979) 93 CA3d 642, 656 [judicial opinions are not written as jury instructions and may be notoriously unreliable as such]; see also People v. Lucero (1988) 44 C3d 1006, 1021; People v. Wagner (2009) 170 CA4th 499, 508.) This is so because (1) “…attempted murder must be judged separately as to each alleged victim” (People v. Perez, supra, 50 C4th at 230 [internal cites and punctuation omitted]), (2) it would be cumbersome, confusing and superfluous to require the jurors to figure out what area constituted the “kill zone” and who was in it, and (3) the term “kill zone” is inflammatory.
Accordingly, the tailoring suggested in the proposed instruction is a better way to convey than required elements to simply identify or describe (see People v. Stone, supra, 46 C4th at 140 [no specific target required for attempted murder based on concurrent intent]) all the persons the prosecution alleges were in the kill zone. If the jurors believe that the defendant (1) took a direct step toward simultaneously killing every one of the alleged victims and (2) intended to do so, then guilt under the “kill zone” theory has been proved. If not, then the jurors must not convict any of the alleged victims under the “kill zone” theory. However, this would not necessarily preclude the jurors from convicting on some counts and not others under a “non-kill zone” direct target theory. (See FORECITE F 600.2 Inst 2 Additional Language When The Prosecution Relies On Alternative “Non-Kill Zone.”)
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 600.6 Attempted Murder—Defense Theories
F 600.6 Inst 1 Defense Theory That Intent To Kill Cannot Be Presumed From Commission Of A Dangerous Crime (PC 664 & PC 187)
*Add to CC 600:
Intent to kill unlawfully is a necessary element of attempted murder and the prosecution must prove beyond a reasonable doubt that the defendant harbored such an intent. Intent to kill unlawfully cannot be inferred solely from the commission of another dangerous crime such as __________ <insert appropriate crime, e.g., assault with a deadly weapon, arson, etc.>. In addition to proving that defendant committed __________, the prosecution must present other independent evidence which, directly or by solid inference, proves beyond a reasonable doubt that defendant intended to kill.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Commission Of Dangerous Act Does Not Prove Intent To Kill— Specific intent to kill is a necessary element of attempted murder. (People v. Collie (1981) 30 C3d 43, 62.) Therefore, it must be proved and cannot be inferred merely from the commission of another dangerous act but “must be affirmatively proved by direct evidence or by solid inference.” (People v. Belton (1980) 105 CA3d 376, 381; see also People v. Snyder (1940) 15 C2d 706, 708; People v. Maciel (1925) 71 CA 213, 217-18; People v. Miller (1935) 2 C2d 527, 532-33.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant” —The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.— To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 8.66a.
F 600.7 Attempted Murder—Preliminary Fact Issues [Reserved]
F 600.8 Attempted Murder—Unanimity/Duplicity/Multiplicity[Reserved]
F 600.9 Attempted Murder—Lesser Offense Issues[Reserved]
