Metropolitan News-Enterprise


Friday, April 24, 2009


Page 3


Specific Target Not Necessary for Attempted Murder Conviction—S.C.


By STEVEN M. ELLIS, Staff Writer


The mental state required for attempted murder is the intent to kill “a” human being, not any particular one, the California Supreme Court unanimously ruled yesterday.

Reversing a Court of Appeal ruling overturning a Kings County gang member’s conviction for shooting from a car window into a group of rival gang members, the justices held that the generalized intent to kill someone, not necessarily a specific target, is sufficient.

The Fifth District reversed Nicholas Stone’s conviction for shooting into a group of 10 Norteno gang members after an October 2005 altercation at a carnival, reasoning that the trial court’s jury instruction on the “kill zone” theory did not fit the facts of the case.

As the Supreme Court noted in People v. Bland (2002) 28 Cal.4th 313, the theory addresses whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, non-targeted persons.

However, the prosecution named only one of the group members in charging documents, and Justice Betty Dawson wrote for the Court of Appeal that there was no evidence Stone used means to kill the named victim that inevitably would result in the death of other victims within a zone of danger.

Dawson, joined by Justices Gene Gomes and Stephen Kane, said the error was prejudicial in light of the prosecution’s argument to the jury. The district attorney conceded he had not proven Stone intended to kill the named victim as opposed to one of the others, but told jurors they could find guilt for intent to kill someone, even if not the named victim.

Writing for the Supreme Court, Justice Ming W. Chin agreed that King Superior Court Judge Peter M. Schultz’s instruction on the “kill zone” was error. But he opined that the Court of Appeal’s opinion was based on a misunderstanding that the charge required intent to kill a particular person.

He explained:

“[A] person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person.

“One of Bland’s kill zone examples involved a bomber who places a bomb on a commercial airplane intending to kill a primary target but ensuring the death of all passengers. We explained that the bomber could be convicted of the attempted murder of all the passengers…. But a terrorist who simply wants to kill as many people as possible, and does not know or care who the victims will be, can be just as guilty of attempted murder.”

However, Chin also commented that the allegation in the information naming a specific victim was “problematic” given that the prosecution ultimately could not prove Stone targeted any one person in the group.

Noting that a defendant’s right to be informed of charges and given a reasonable opportunity to prepare and present a defense would be satisfied under similar circumstances if the information alleged the defendant intended to murder “a member of a group of persons,” Chin said the Court of Appeal must reconsider the issues of the case.

Specifically, he said, the panel must consider any issues regarding the variance between the information, alleging Stone intended to kill the named victim, and the proof at trial: that Stone intended to kill someone although not specifically the named victim.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin R. Baxter, Kathryn Mickle Werdegar, Carlos R. Moreno and Carol A. Corrigan joined Chin in his opinion.

The case is People v. Stone, 09 S.O.S. 2242.


Copyright 2009, Metropolitan News Company