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Shocks: after or fore?

By Brian M. Hoffstadt Ben Armistead | Oct. 22, 2019

California Supreme Court,
California Courts of Appeal

Oct. 22, 2019

Shocks: after or fore?

The California Supreme Court’s strict circumscription of the “kill zone” theory in a recent case was no doubt designed to shore up a tectonic plate that had seen some drift, as some trial courts had been giving kill zone instructions in cases where the defendants’ conduct evinced more of a conscious disregard of risk than a concurrent intent to kill.

0822 ldj brian hoffstadt b

2nd Appellate District, Division 2

Brian M. Hoffstadt

Associate Justice, California Court of Appeal

UCLA School of Law, 1995

In People v. Canizales, 7 Cal. 5th 591 (2019), the California Supreme Court seemingly handed down rock solid guidance about when it is appropriate -- and, more to the point, when it is not appropriate -- to give a "kill zone" instruction in an attempted murder case.

But if Californians know anything, it's that the earth is rock solid until it isn't.

The criminal law in California is no different, as it sits atop ever-shifting tectonic plates of public policy that at times push and pull in different directions. A collision of policies can prompt anything from a minor tremor to a major upheaval. What is more, when and where quakes in the law will strike is nearly impossible to predict.

So where does Canizales fit in this constantly kinetic mosaic?

Context is critical, and Canizales itself deals with an exception to an exception to the general rule governing proof of the intent to kill in homicide cases.

The general rule is that a defendant's "intent to kill need not be directed at a specific person." People v. Bland, 28 Cal. 4th 313, 323 (2002).

Thus, if a defendant shoots at X with the intent to kill X, but misses X and hits and kills Y, defendant is guilty of murdering Y. Even though that defendant did not intend to kill Y, the criminal law holds him liable for murdering Y because the defendant still harbored a "malign[ant]" intent to kill and achieved the same consequence as if he had achieved his goal (that is, someone's death). People v. Scott, 14 Cal. 4th 544, 550 (1996); see also People v. Suesser, 142 Cal. 354, 366 (1904). Any other rule would let a defendant "escape punishment for murder, even though [he] deliberately and premeditatedly killed -- because of the 'lucky' mistake' of" his "bad aim." Bland, at 321 (quoting People v. Birreuta, 162 Cal. App. 3d 454, 461 (1984)). This rule is known as the "doctrine of transferred intent," id. at 317.

Is the defendant in that scenario also liable for the attempted murder of X, his intended victim? Or does the transfer of his intent to kill to support the murder conviction for Y effectively consume his malignant intent toward X? The general rule provides the answer: Because a defendant's intent to kill need not be "directed a specific person," it is "not 'used up' once it is employed to convict the person of murdering" Y. Bland, at 322-23. What is more, punishing the defendant for the murder of Y and the attempted murder of X properly punishes him for the two crimes he actually committed. Scott, at 551.

Now the exception: A defendant's intent to kill must be directed toward a specific victim when the crime at issue is attempted murder. Bland, at 317, 327, 328. Thus, if a defendant shoots at X and misses, but hits but does not kill Y, he is liable for the attempted murder of X, but not the attempted murder of Y.

This exception has two primary rationales -- one legal, the other practical. As a legal matter, the crime of attempted murder "require[s] a specific intent to kill." People v. Gonzalez, 54 Cal. 4th 643, 653 (2012). Because "[t]he crime of attempt sanctions what [a defendant] intended to do but did not accomplish," the reasoning goes, there is no reason to hold him liable for an "unintended and unaccomplished potential consequence[]." Bland, at 327. As a practical matter, deeming a defendant to have harbored an intent to kill anyone he struck with a bullet -- or, for that matter, anyone he nearly struck with a bullet -- could have an unwarranted multiplier effect. Bland, at 328-29. If a defendant intending to kill X fires one bullet into the crowd of 100 people, is he then liable for 100 counts of attempted murder? The exception dictates the answer to this question: "No."

And this leads to the exception to the exception: A defendant who, by his actions, is shown to have a concurrent intent to kill several people at once can be liable for the attempted murder of all of them. Thus, if a defendant fires dozens of bullets at X, Y and Z in a car in order to kill X, he may be liable for the attempted murder of X, Y and Z because his conduct in creating a "zone of fatal harm" -- a so-called "kill zone" -- evidences a concurrent intent to kill everyone in that car, thereby satisfying the "intent to kill" element of attempted murder for X, Y and Z. Bland, at 318, 333.

Canizales addressed this exception to the exception by clarifying when a defendant's conduct evidences a concurrent intent to kill multiple people (and, hence, when a "kill zone" instruction in support of an attempted murder charge may be given). Emphasizing that a concurrent intent to kill is not shown simply because the defendant "acted with ... conscious disregard of the risk of serious injury or death for those [persons] around a primary target," Canizales held that a defendant may be held liable for the attempted murder of a non-intended target only if (1) "the circumstances of the defendant's attack on the primary target ... 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 ... was located within that zone of harm." Canizales, at 607 (italics added). Canizales went on to identify several relevant "circumstances" bearing on whether a defendant "inten[ded] to create a zone of fatal harm and the scope of any such zone": (1) "the type of weapon used," (2) "the number of shots fired (when a firearm is used)," (3) "the distance between the defendant and the alleged victims," (4) "the proximity of the alleged victims to the primary target," (5) whether the attack location was open or instead had a "limited means of escape," and (6) whether the defendant hit any of his intended targets. Id. at 607, 610-11.

Canizales' strict circumscription of the "kill zone" theory was no doubt designed to shore up a tectonic plate that had seen some drift, as some trial courts -- including the one Canizales itself reviewed -- had been giving kill zone instructions in cases where the defendants' conduct evinced more of a conscious disregard of risk than a concurrent intent to kill.

But is Canizales an aftershock of earlier cases recognizing the "kill zone" theory or a foreshock to a further collision of public policies?

In many ways, Canizales is an aftershock. It clarifies -- and visibly narrows -- the "kill zone" theory of criminal liability. And it leaves room for further aftershocks as courts grappled with its implications. Under what circumstances will a "kill zone" theory be appropriate in the future? Canizales predicted that a kill zone instruction will be appropriate in "relatively few cases," id. at 608, but two of the four post-Canizales decisions (all unpublished) have upheld kill zone instructions on their facts. Also, for which crimes should the defendants who are no longer to be charged with attempted murder under a kill zone theory be charged? Assault with a deadly weapon or assault are options. Bland, at 329. Are discharging a firearm at an inhabited dwelling house or in a grossly negligent manner also options? Pen. Code Sections 246, 246.3.

Could Canizales also be a foreshock? Canizales requires that a defendant harbor a specific -- although possibly concurrent -- intent to kill before he may be liable for attempted murder. Yet a defendant can still be liable for attempted murder of a person without harboring any intent to kill him if he aids and abets a cohort in some other crime and if attempted murder is a natural and probable consequence of that other crime. People v. Favor, 54 Cal. 4th 868, 871-72 (2012); People v. Chiu, 59 Cal. 4th 155, 158-59 (2014). What is more, the California Legislature's recent effort to abrogate natural and probable consequences liability for murder, Penal Code Section 1170.95, did not extend to attempted murder. People v. Munoz, 39 Cal. App. 5th 738, 754 (2019); People v. Lopez, 38 Cal. App. 5th 1087, 1105 (2019). Acts done in concert often pose a greater danger, but is that distinction sufficient to justify an attempted murder conviction without any intent to kill?

My advice? Brace yourself. 


Ben Armistead

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