August 29th, 2016

In People v. Falaniko, No. B259918, 2016 Cal. App. LEXIS 632, at *14-15 (Ct. App. July 29, 2016) there was evidence that the defendant shot into a building, but no evidence that he intended to kill everyone inside or that two of the victims were in fact inside. The reviewing court held that there must be actual evidence that the defendant’s intent was to kill everyone in the vicinity, such an intent cannot just be assumed:

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 he attempted to kill everyone in the victim’s vicinity, or he indiscriminately sought to kill everyone in a particular area without having any primary target. [Citation.] In addition, before a defendant may be convicted of attempted murder under a kill zone theory, the evidence must establish that all the victims were actually in the kill zone. [NF]

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