Kill Zone Theory Only Applies When Defendant Tried to Kill Everyone in the “Kill Zone” -– Correlation Between Number of Victims and Shots Fired or Existence of A Primary Target — Is Not Alone Determinative
July 7th, 2016

The kill zone theory applies where the defendant attempts to kill an entire group of people in order to kill a specific victim. Because the defendant acts with the specific intent to kill everyone in the victim’s vicinity he is guilty of attempted murder of each member of the group. (See FORECITE F 600.2 Inst 2 [link] and F 600.2 Inst 3 [link].)

However, the “kill zone” theory does not apply, and the instruction should not be given, when there is no evidence of an intent to kill an entire group of people. (People v. Stone (2009) 46 C4th 131; see also People v. Perez (2010) 50 C4th 222, 232; People v. McCloud (2012) 211 CA 4th 788.) The number of shots fired or fact the defendant had a primary target are relevant factors for whether an instruction is appropriate, but are not dispositive.

For example, in People v. Cardona (2016) 246 CA4th 608 all of the evidence indicated that Cardona’s primary motivation in shooting the alleged victim was self-defense and there was no evidence that Cardona sprayed everyone near the alleged victim with gunfire. Because there was no evidence of an attempt to kill everyone in a particular area in order to kill the alleged victim, it was error to give the kill zone instruction.

The Attorney General argues that McCloud, Perez, and Stone are distinguishable because, in each case, the defendant did not fire enough shots to kill all of the victims for whom he was convicted of attempted murder. Here, however, Cardona was charged with only one count of murder and one count of attempted murder, and he fired at least five shots, including one that struck and seriously wounded Carrillo. But the defining test of the kill zone theory is whether “the evidence supports a reasonable inference that, as a means of killing the primary target, the defendant specifically intended to kill every single person in the area in which the primary target was located.” [Citation to McCloud.] A correlation between the number of shots fired and the number of victims in the alleged kill zone is merely one relevant factor. The Attorney General also points out that, unlike the defendants in McCloud and Stone, Cardona had a primary target, namely Jauregui. In McCloud [citation]we held that a kill zone instruction was inappropriate in part because there was no evidence that the attacker had a primary target. But the existence of a primary target, although relevant, is not sufficient for the application of the kill zone theory. Again, without evidence that the defendant intended to kill everyone in an area in order to kill the primary target, the kill zone theory is inapplicable. [Citation.] (246 CA4th at 615-16.)

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