by Anthony Accurso 

The Supreme Court of California clarified that the use of force that merely endangers everyone in an area is insufficient to support a kill zone theory instruction for attempted murder. 

Defendants KeAndre Windfield and Michael Canizales were charged with murder and two counts of attempted murder arising from a gang-related shooting at a block party in July 2008. Based on statement from the intended victims and a witness to Windfield’s confession, investigators determined that the defendants arrived near the block party with the intention to kill Denzell Pride. Travion Bolden, a member of the same gang as Pride, may have also been an intended target. Leica Cooksey was dancing near a vehicle when a bullet struck her in the abdomen, and her death was the basis for the murder charge. Neither Pride nor Bolden were injured. 

At trial, the jury found that Winfield had fired at least five bullets in the direction of Pride from approximately 100 to 160 feet away, and that Canizales aided in the shooting. The jury also convicted the defendants of the murder of Leica Cooksey. With regards to the attempted murder of Bolden, the People requested a jury instruction known as the “kill zone theory,” which would allow the jury to convict the defendants if Winfield intended to kill Pride and created a zone of harm around him to ensure his murder. After a conviction on all three charges, defendants appealed on the grounds that the circumstances did not support the kill zone instruction with regards to the attempted murder of Bolden. The California Supreme Court agreed. 

The Supreme Court adopted the kill zone theory in People v. Bland (2002) 28 Cal.4th 313, which basically provides that prosecutors can attempt to establish that the defendant had the necessary specific intent to “kill one or more alleged victims arose independently of his actions toward any other victim, or that the defendant’s intent to kill an untargeted victim arose concurrently with his intent to kill a primary target,” explained the Court in the current case. The kill zone theory is necessary because “an intent to kill cannot be ‘transferred’ from one attempted murder victim to another under the transferred intent doctrine,” the Court further explained. 

The Court observed that “the potential for misapplication of the kill zone theory, as evidenced by prior appellate cases, illustrates the importance of more clearly defining” it for future cases. Thus, the Court announced the following two-part test for when the kill zone theory may be applied in an effort to establish the specific intent for attempted murder: the jury must conclude “(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.”

The Court cautioned that the kill zone theory does not apply where the defendant simply subjected everyone near the intended target to lethal risk. And it added that application is a highly fact-specific inquiry. According to the Court, “we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate.” 

After clarifying the standard for application of the kill zone theory, the Court turned to the facts of the present case and concluded that the evidence doesn’t support its application with respect to the attempted murder of Bolden. The Court found, based on the facts presented at trial, there was insufficient evidence that the defendants actually intended to kill everyone located within the kill zone. Their intended target was clearly Pride, but there wasn’t sufficient evidence that they intended to create a lethal zone surrounding Pride in order to kill him, the Court concluded. Among the factors cited by the Court in reaching its conclusion were the limited number of shots fired, the defendants’ “lack of proximity to Pride,” and the “openness of the area in which the attack occurred….” Therefore, there was insufficient evidence to satisfy the two-part test announced for an instruction on the kill zone theory, so it was reversible error for the trial court to have done so.

Accordingly, the Court reversed the judgment of the Court of Appeals affirming the attempted murder conviction with respect to Bolden. See: People v. Canizales, 442 P.3d 686 (Cal. 2019). 

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