Reviewing Court Holds That Judge Correctly Instructed Jury With “Kill Zone” Theory
December 1st, 2021
When a single act is charged as the basis for the attempted murders of two or more persons, the intent to kill element must be proved independently as to each alleged victim. A so-called “kill zone” instruction is only proper when: (1) the circumstances of the defendant’s attack on a primary target are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm and to kill everyone present to ensure the primary target’s death; and (2) the alleged attempted murder victim who was not the primary target was in that zone of harm (People v. Canizales (2019) 7 Cal.5th 591).
In People v. Mumin (2021) 68 Cal.App.5th 36, the parties disputed the proper standard of review of a trial court’s decision to instruct on this theory: Mumin argued the reviewing court must find that the only reasonable inference from the evidence is that the defendant had the requisite intent; respondent asserted it is sufficient if the reviewing court concludes the evidence supports a reasonable inference that the defendant had the necessary intent, even if an opposite inference is also reasonable. The court agreed with respondent. The evidence was sufficient to warrant a kill zone instruction because defendant fired a number of shots through several doors that police were attempting to enter to arrest him, intending to kill anyone who might be behind either door. In reaching this result the court disagreed with In Re Rayford (2020) 50 Cal.App.5th 754, which concluded that the reviewing court must be convinced that the only reasonable inference from the evidence is that the defendant had the requisite intent.
Tags: Attempted Murder: Kill Zone, CC 600