Metropolitan News-Enterprise


Tuesday, June 25, 2019


Page 1


California Supreme Court:

‘Kill Zone’ Theory Requires Specific Intent to Slay Everyone

Cantil-Sakauye Says Conscious Disregard of Risk to Persons in Proximity of Primary Target Insufficient


By a MetNews Staff Writer


The California Supreme Court yesterday reversed the conviction of two men for the attempted murder of a rival gang member, holding that the trial court gave an overly broad instruction on the “kill zone.”

Chief Justice Tani Cantil-Sakauye wrote for a unanimous court.

“[T]the potential for the misapplication of the kill zone theory, as evidenced by prior appellate cases, illustrates the importance of more clearly defining the kill zone theory in future cases,” she observed in an opinion that narrows circumstances under which an instruction on the theory may be given.

Cantil-Sakauye’s opinion partially reverses a 2014 decision by Div. Two of the Fourth District Court of Appeal, authored by Presiding Justice Manuel A. Ramirez. It endorses language from a March 19 decision by this district’s Div. One in People v. Medina.

In Medina, Los Angeles Superior Court Judge Gregory J. Weingart, sitting on assignment, wrote:

“[T]he kill zone instruction is not appropriate in the absence of evidence indicating the defendant had a primary target, and the specific intent to kill everyone in the kill zone around the primary target to ensure the target’s death. The theory does not mean the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given.”

Sets Standard

Cantil-Sakauye set forth the standard:

“[T]he kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that 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; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm.

“In determining the defendant’s intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory.”

Caution Required

She went on to stress that an instruction on the kill zone theory should rarely be given, instructing:

“[I]n 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.”

She went on to say:

“We emphasize that going forward trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory. Indeed, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate. Trial courts should tread carefully when the prosecution proposes to rely on such a theory, and should provide an instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction.”

Three Counts

Defendants Michael Canizales and KeAndre Windfield were found guilty by a jury of first degree murder and two counts of attempted murder. The Fourth District’s Div. One affirmed all three convictions in a March 5, 2014 opinion; the defendants sought review in the California Supreme Court which bounced the case back to the Court of Appeal for reconsideration in light of a recent decision; in a Nov. 19, 2014 opinion, the Court of Appeal concluded that the murder conviction of bystander Leica Cooksey had to be reversed.

Denzell Pride was the primary target of an attack by gunfire. The attempted murder of him was not in issue.

The question was whether the conviction for the attempted murder of Travion Bolden could stand. Cantil-Sakauye answered in the negative.

 She said the evidence “showed that from a substantial distance Windfield shot five bullets in the direction of a target”—Pride—“who immediately ran down a city street after the first shot was fired.” Four shots followed.

“This evidence was insufficient to support instruction on the kill zone theory” with respect to Bolden, she declared.

The case is People v. Canizales, 2019 S.O.S. 2944.

Review was granted in the case on Nov. 19, 2014 and it was fully briefed as of April 29, 2016.


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