Friday, December 7, 2012
C.A. Throws Out Attempted Murder Convictions
By JACKIE FUCHS, Staff Writer
The “kill zone” theory of attempted murder could not apply, where it necessarily would have meant that the defendants intended to kill 46 people with 10 bullets, the Court of Appeal for this district has ruled.
Justice Frances Rothschild, writing for Div. One Wednesday, said that Los Angeles Superior Court Judge Mark C. Kim committed prejudicial error by allowing a jury to be presented with the theory.
That jury found Jonzel Stringer guilty of two counts of second degree murder and 46 counts of attempted murder. A second jury convicted Izac McCloud of 46 counts of assault with a firearm at the joint trial.
The events leading to the convictions took place in 2008 at a Masonic Lodge in Lakewood, during the 18th birthday party of twin brothers Randall and Carlton Hook, who were founding members of an anti-gang social group called the “Acrites” (derived from the words “act right”).
Over 400 people attended the party, with hundreds packed “elbow to elbow,” as the justice put it, inside and many more in the parking lot waiting to enter
As the party grew larger, the twins’ father decided it was getting uncontrollable and decided to shut it down. As he was on his way to announce that the evening was over, the defendants allegedly fired shots from a semiautomatic handgun through the windows while frantic partygoers attempted to flee.
Three victims inside the lodge ended up shot, two fatally. Police officers found 10 nine-millimeter shell casings, the maximum number of cartridges contained in the most common magazine size for a nine-millimeter handgun, in the parking lot.
The prosecution requested that the judge instruct the jury on the kill zone theory of liability for attempted murder, first approved by the California Supreme Court in People v. Bland (2002) 28 Cal.4th 313.
Stringer’s counsel objected and was overruled.
Under Bland, a shooter may be convicted of multiple counts of attempted murder when, as the means of killing a targeted victim, he uses lethal force intended to kill everyone in a “kill zone” around such victim.
Rothschild noted that the theory would not apply to a defendant who attacked a targeted individual “in a manner that subjected other nearby individuals to a risk of fatal injury,” or “was aware of the lethal risk to the nontargeted individuals and did not care whether they were killed in the course of the attack …”
“The kill zone theory applies only if the evidence shows that the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted individual was located … as a means of killing a targeted individual within that area. In effect, the defendant reasons that he cannot miss his intended target if he kills everyone in the area in which the target is located.”
The prosecutor defended the kill zone instruction by arguing that when the defendants shot the 10 bullets, their primary target was a person who had punched Stringer outside the party, thereby creating a kill zone around that person.
Rothschild disagreed, finding that Kim erred in allowing the theory to be presented to the jury because:
“In order for the kill zone theory to support 46 attempted murder convictions … the record would have to contain evidence that Stringer and McCloud tried to kill the person who punched Stringer by killing all 46 people in the area where Stringer’s assailant was located. But the record contains no evidence that Stringer or McCloud …intended to kill the 4.6 people per shot that would be necessary to support respondent’s application of the kill zone theory.”
In addition, she said, the prosecutor did not argue that there was a primary target. As a result there could be no area in which the primary target was located and, thus, no kill zone.
The panel further held that as there was no evidence that the defendants had more than 10 bullets or that they intended to kill more than 10 people, there was insufficient evidence to sustain Stringer’s convictions on all but eight of the 46 counts of premeditated attempted murder, or to sustain McCloud’s 46 assault convictions.
Presiding Justice Robert Mallano and Jeffrey Johnson concurred in the opinion. The case is People v. McCloud, 12 S.O.S. 6236.
Copyright 2012, Metropolitan News Company