People v. Canizales (2019) 7 Cal.5th 591, 607-09 concluded that CC 600 [September 2019 version] was deficient and recommended revisions of that instruction. (See CSC Calls For Revision Of Kill Zone Instruction (CC 600).)
Canizales explained that the instruction was flawed because it did not adequately define the term “kill zone” and failed to direct the jury to consider the circumstances of the attack in determining whether the defendant’s attempt to kill everyone around the primary target was undertaken as a mean of killing the primary target. (Ibid.)
CC 600 was heavily revised in light of Canizales, and it is now considerably longer and more complex. (CC 600, Revised April 2020.) But even this revised version of the instruction largely retains a defect:
“In articulating the elements of the kill zone theory, the revised instruction does not require the jury to find that the defendant intended to kill everyone in the area around the primary target in order to ensure the death of the primary target. Instead, the revised version provides: ‘A person may intend to kill a primary target and also [a] secondary target[s] within a zone of fatal harm or ‘kill zone.’ A ‘kill zone’ is an area in which the defendant used lethal force that was designed and intended to kill everyone in the area around the primary target.’ {Quoting CC 600.]” (In re Sambrano (2022) 79 Cal.App.5th 724, [pp 8-11]; Emphasis by Sambrano.)
Canizales held that unless the defendant intended to kill everyone in the area around the primary target in order to effectuate the killing of the primary target, the kill zone theory does not apply. (Canizales, supra, 7 Cal.5th at 607 [a kill zone is “an area in which the defendant intended to kill everyone present to ensure the primary target’s death”].)
However,
The revised instruction’s only allusion to that requirement appears in the last sentence of the instruction, which tells the jury, “If you have a reasonable doubt whether the defendant . . . intended to kill [the primary target] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [the other people in the zone].” (CALCRIM No. 600.) But jurors might well be confused when they discover in the final sentence that a reasonable doubt about whether the defendant intended to kill the primary target by killing everyone in the kill zone requires them to find the defendant not guilty, given that nowhere else does the instruction say an intent to kill the primary target by killing everyone in the kill zone is required. (Sambrano, supra.)
Furthermore, Sambrano questioned whether “it would ever be prudent” to give a kill-zone instruction:
Given the Supreme Court’s words of caution, the apparently ongoing difficulty in crafting an error-free instruction on the kill zone theory, and the absence of any requirement to give a kill zone instruction, it is not clear why it would ever be prudent to give such an instruction. It appears easy to commit error by instructing the jury on the kill zone theory, but it is literally impossible to err by declining to do so.
In re Sambrano (June 9, 2022, E078147) [pp. 8-11]; but see Reviewing Court Holds That Judge Correctly Instructed Jury With “Kill Zone” Theory
And,
If a court deems it appropriate to instruct a jury on the kill zone theory, the instruction could arguably be reduced to a single sentence (and without use of the term “kill zone”) along something like the following lines: If, having considered all the circumstances of the attack, you find beyond a reasonable doubt that the defendant intended to kill <insert name of primary target> by killing everyone in the area in which <insert name of primary target> was located, then you may infer, but are not required to infer, that the defendant intended to kill everyone in that area.
(In re Sambrano, supra at _____, fn. 3 [pp. 11 fn. 3].)
