California jury instruction CALJIC No. 8.66.1, is a legally erroneous and misleading instruction on the “kill zone” theory of liability for attempted murder by imposing indeterminate life sentences for the attempted murder convictions when the information did not allege that the attempted murders were willful, deliberate, and premeditated.
There is a crucial distinction between the mental states required for a defendant to be convicted of murder and attempted murder: “Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices.” In contrast, “ ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’
This distinction has created complications in cases where a defendant attacks multiple victims. Under the doctrine of transferred intent, when a defendant fires a gun in an attempt to kill one victim, but the bullet strikes and kills a bystander, the defendant is guilty of murder even if he did not know the bystander was present. But the doctrine of transferred intent does not apply when an unintended victim survives the attack. The court in Bland reasoned that applying the doctrine of transferred intent would make liability for attempted murder too vague: “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?”
The Supreme Court in Bland, supra, 28 Cal.4th 313, introduced the kill zone theory to address another variation of this theme—situations in which a defendant attempts to kill an entire group of people in order to kill a specific victim. Because the defendant acts with the specific intent to kill everyone in the victim's vicinity, he is guilty of attempted murder of each member of the group. The theory of guilt here is not transferred intent, but rather concurrent intent, meaning that “ ‘the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.’
The Bland court provided examples of situations in which a kill zone theory is appropriate. The paradigmatic example is that of “ ‘an assailant who places a bomb on a commercial airplane intending to harm a primary target on board [who] ensures by this method of attack that all passengers will be killed.’ The Bland court also cited the example of People v. Vang (2001) , in which the defendants fired multiple rounds with high-powered, wall-piercing weapons at two occupied houses. Although the defendants primarily meant to kill one victim, they were convicted of 11 counts of attempted murder, one for each inhabitant of the house. According to the Bland court, the court in Vang analyzed the case under the same reasoning as the kill zone theory, even if it did not use that name. In Bland itself, the court held that the kill zone theory was appropriate, noting that the defendant was liable for two counts of attempted murder for “fir[ing] a flurry of bullets at [a] fleeing car and thereby creat [ing] a kill zone.”
By contrast, when there is no evidence of an intent to kill an entire group of people, courts have held that the kill zone instruction is inappropriate. Thus, in People v. Stone, the defendant fired a single shot at a group of 10 people, not striking any of them. Our Supreme Court held that “[t]he kill zone theory simply does not fit the charge or facts of this case” because there was no evidence that the defendant intended to take the lives of the entire group in order to kill one victim. In another case with similar facts, the Supreme Court held that “[t]he facts of this case do not establish that defendant created a ‘kill zone’ by firing a single shot from a moving car at a distance of 60 feet at [a] group of eight individuals.” And in People v. McCloud, we held that a kill zone theory did not support the defendants' conviction of 46 counts of attempted murder when they fired 10 shots into a crowded party.