Tuesday, July 2, 2002
Page 1
State High Court Clarifies Rules on Transferred Intent
By KENNETH OFGANG, Staff Writer/Appellate Courts
A defendant who attempted to kill a specific victim cannot be convicted of the attempted murder of bystanders on the basis of the transferred-intent doctrine, the state Supreme Court ruled yesterday.
While a defendant may be convicted of multiple murders even when there is only one intended victim “the doctrine does not apply to an inchoate crime like attempted murder,” Justice Ming Chin explained.
“A person who intends to kill only one is guilty of the attempted (or completed) murder of that one but not also of the attempted murder of others the person did not intend to kill,” the jurist elaborated. “Thus, in this case, whether defendant is guilty of the attempted murder of the two surviving victims depends on his mental state as to those victims and not on his mental state as to the intended victim.”
In a 5-2 decision, the justices confirmed the convictions of Jomo K. Bland, a member of the Insane Crips gang, on charges of murdering a member of the Rolling 20’s Crips by shooting into his car, and of the attempted murders of two passengers. The court’s majority concluded that Los Angeles Superior Court jurors were adequately instructed on attempted murder and were not misled by Judge Bradford L. Andrews’ instructions on transferred intent.
Witnesses testified that the dead man, Kenneth “Kebo” Wilson, was driving through Long Beach when he stopped at the sight of Bland and another man, who had a gun. Wilson was asked to get out of the car and talk, but advised the pair that his passengers were not gang members and that he would return after he dropped them off.
Bland, according to the testimony, approached the driver’s side of the car, said, “So you Kebo from 20’s,” and started shooting. Wilson started to drive away, but Bland and the other man fired at the car, which crashed into a pole.
Wilson died of a gunshot wound to the chest. Both passengers were hit, but recovered.
Jurors, who were given the standard instructions on attempted murder and on transferred intent, convicted on all counts. But a divided panel in Div. One of this district’s Court of Appeal reversed on the ground that the transferred intent instructions were erroneous.
Chin disagreed. “Whether one conceptualizes the matter by saying that the intent to kill the intended target transfers to others also killed, or by saying that intent to kill need not be directed at a specific person, the result is the same: assuming legal causation, a person maliciously intending to kill is guilty of the murder of all persons actually killed. If the intent is premeditated, the murder or murders are first degree,” the jurist wrote.
The justice pointed out that a 1984 Court of Appeal decision, which held that transferred intent does not apply at all when the target crime is completed as to the intended victim, has not been “treated…kindly” by courts in other states. Most jurisdictions, do not “give the defendant a discount on the second and subsequent victims of his intentional conduct,” Chin quoted the Connecticut Supreme Court.
But that reasoning does not apply to a crime, such as attempted murder, which requires no physical injury to the victim, the justice continued.
Chin reasoned:
“The world contains many people a murderous assailant does not intend to kill. Obviously, intent to kill one person cannot transfer to the entire world. But how can a jury rationally decide which of many persons the defendant did not intend to kill were attempted murder victims on a transferred intent theory? To how many unintended persons can an intent to kill be transferred? Just as acts with implied malice constitute murder of anyone actually killed, but not attempted murder of others, so, too, acts with the intent to kill one person constitute murder of anyone actually killed, but not attempted murder of others.”
But while the intent to kill Wilson does not transfer to his passengers, Chin went on to say, there was sufficient evidence to infer that Bland intended to kill them as well.
Chin was joined by Chief Justice Ronald M. George, Justice Marvin Baxter, and Justice Kathryn M. Werdegar.
Justice Joyce L. Kennard, joined by Justice Carlos Moreno, dissented.
The jury, she reasoned, may have believed that CALJIC No. 8.65, the standard instruction on transferred intent, applied to attempted murder as well as to murder, which the prosecutor argued to be the case.
“If the prosecutor, a professional trained and experienced in criminal law, incorrectly believed that the instruction applied to attempted murder, it is difficult to fathom the majority’s conclusion that a jury of lay individuals would correctly apply to the facts in this case the complex legal principles contained in the instruction on transferred intent,” Kennard wrote.
The appeal was argued in the Supreme Court by Mark L. Christiansen of Palm Desert for the defendant and Deputy Attorney General Noah P. Hill for the state.
The case is People v. Bland, 02 S.O.S. 3356
Copyright 2002, Metropolitan News Company