Earlier this year, a state appellate court issued a written opinion in a California attempted murder case discussing the applicability of the kill-zone theory. Ultimately, the court concluded that the prosecution did not present evidence justifying the kill-zone instruction to the jury, and thus, the defendant’s conviction for murder was reversed.
According to the court’s opinion, the charges in the case arose after a gang-related shooting that was directed at two rival gang members. Neither of the intended targets was hit. However, a bystander was hit in the abdomen with a single bullet and died from those injuries. The defendants, both of which were allegedly shooters in the incident, were charged with one count of murder and two counts of attempted murder.
Regarding the attempted murder charges, the prosecution moved forward on two theories. First, that the shooters were trying to kill the intended victims because they were rival gang members. Second, the prosecution argued the kill-zone theory, which she summarized as “if they’re shooting at someone and people are within the zone that they can get killed, then you’re responsible for attempted murder as to the people who are within the zone of fire.” In an unrelated appeal, the defendants’ murder conviction was reversed. In this appeal, the defendant challenged the prosecution’s use of the kill-zone theory for the attempted murder convictions.
The court explained that someone can only be found guilty of attempted murder if the prosecution proves that the defendant had “the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” The court acknowledged that “direct evidence of intent to kill is rare,” and circumstantial evidence is common in attempted murder cases. However, even when using circumstantial evidence, the prosecution must present evidence showing the defendant’s specific intent to kill each victim.
The court explained that the kill-zone theory is a way that the prosecution can rely on circumstantial evidence to prove the specific intent to kill that may otherwise seem to be an unintended victim. To establish if the kill-zone theory applies, the prosecution must show 1.) that the defendant’s actions were intended to create a “zone of fatal harm” in which they intend to kill everyone inside, and 2.) the alleged victim was located within that zone.
Here, the court explained that the prosecution’s evidence was insufficient. The court noted that the evidence showed that the defendants were not attempting to create a “zone of fatal danger” but were directing their actions at one specific individual. Thus, the evidence did not support the kill-zone instruction and the convictions could not stand.
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