In attempted murder case, state high court limits use of novel jury instruction

The state Supreme Court decided Monday that a rule it adopted 17 years ago broadening attempted murder liability must be applied by lower courts sparingly.

Using the "kill zone" theory, a jury may infer that a criminal defendant who, say, fired a volley of gunshots toward an intended victim also meant to kill individuals who were nearby. That inference substantiates the mental culpability -- a specific intent to kill -- required in attempted murder convictions.

But in the court ruling, justices unanimously expressed their concern that the theory too easily allows jurors to ascribe a heightened degree of malice to defendants.

"There is a substantial potential that the kill zone theory may be improperly applied, for instance, where a defendant acts with the intent to kill a primary target but with only conscious disregard of the risk that others may be seriously injured or killed," Chief Justice Tani Cantil-Sakauye wrote. "Accordingly, in future cases trial courts should reserve the kill zone theory for instances in which there is sufficient evidence from which the jury could find that the only reasonable inference is that the defendant intended to kill (not merely to endanger or harm) everyone in the zone of fatal harm."

The ruling reverses a 4th District Court of Appeal decision that had upheld attempted murder convictions of Michael Canizales and KeAndre Windfield.

The two men, both members of a Rialto-based gang, fired five gunshots one evening in 2008 at rival gang member Denzell Pride in reprisal for perceived slights, the court ruled.

Pride's gang compatriot, Travion Bolden, was nearby, and Bolden and Pride both successfully avoided the gunfire, which hit and killed an unrelated bystander, Leica Cooksey.

In addition to counts of first degree murder for Cooksey's slaying and the attempted murder of Pride, Canizales and Windfield were also convicted of the premeditated attempted murder of Bolden after a jury had been read an instruction on the kill zone theory.

The high court concluded that evidence was lacking to show the defendants intended to kill individuals around their target, including Bolden. People v. Canizales, 2019 DJDAR 5692 (Cal. June 24, 2019).

Stressing the limited applicability of the theory, Cantil-Sakauye wrote it should solely be employed where "the only reasonable inference is that the defendant intended to create a zone of fatal harm -- that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death -- around the primary target."

David P. Lampkin, an appellate specialist practicing in Camarillo who represented Windfield, welcomed the ruling as a needed corrective against a theory that, in his view, prosecutors and lower courts have overused.

"The opinion recognizes that the kill zone theory has been used much too loosely," Lampkin said. "What's happening is the theory is being applied when the evidence doesn't really suggest the defendant is trying to kill everyone; all he managed to do was make it more dangerous to be in the area."

"That's not enough," Lampkin added.

Christine Vento, a sole practitioner in Los Angeles who represented Canizales, agreed that a broad application of the kill zone theory conflicts with attempted murder's narrower conception.

"The court doesn't want an attempted murder conviction based on you creating a zone of harm," Vento said. "They want you to have the specific intent to kill these people; that's different from having a conscious disregard for them."

The high court first endorsed the kill zone theory in a 2002 decision but has had few opportunities since to further elucidate the rule. People v. Bland, 28 Cal.4th 313 (Cal. 2002). Monday's ruling suggests those opportunities will remain rare.

"Going forward trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory," Cantil-Sakauye wrote. "Indeed we anticipate there will be relatively few cases in which the theory will be applicable and the instruction appropriate."

"You get the feeling that the court is not comfortable with this theory," added Lampkin, noting that few of the current justices were on the court when the rule was first articulated. "They seem to be holding the thing at arms length, as if it's something the cat dragged in."

The state attorney general's office declined to comment on the ruling, noting only that it was reviewing it.