IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
AHMED MUMIN,
Defendant and Appellant.
S271049
Fourth Appellate District, Division One
D076916
San Diego County Superior Court
SCD261780
August 17, 2023
Justice Corrigan authored the opinion of the Court, in which
Acting Chief Justice Jenkins and Justices Kruger, Groban, and
Robie* concurred.
Justice Liu filed a concurring opinion, in which Justice Evans
concurred.
* . Associate Justice of the Court of Appeal, Third Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
PEOPLE v. MUMIN
S271049
Opinion of the Court by Corrigan, J.
Here we resolve a conflict among the Courts of Appeal as
to the proper standard of review when a defendant challenges a
court’s decision to instruct on a concurrent intent, or “kill zone,”
theory as applied to an allegation of attempted murder. (See
People v. Canizales (2019) 7 Cal.5th 591 (Canizales).) We
conclude that, although the Court of Appeal applied the proper
standard, it erroneously concluded that sufficient evidence
supported the giving of a concurrent intent instruction. We
reverse the Court of Appeal judgment to the extent it affirmed
the one attempted murder conviction that was based on that
theory.
I. BACKGROUND
Early on April 16, 2015, defendant Ahmed Mumin robbed
a San Diego convenience store and fatally shot customer Eric
Schade. DNA testing of items recovered at the scene pointed to
defendant as a suspect. The store clerk later identified him as
the robber.
Two days later, defendant was at an apartment complex
where he asked a relative for a ride to “[a]nywhere,” saying the
police were looking for him. Detectives, having discovered a
connection between defendant and the complex, arrived and
defendant ran when he saw them. Shortly thereafter, a
burglary in progress was reported at the complex. A resident
said defendant had a silver handgun, pushed on several
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windows, then hid a backpack and fled. Responding officers
found a backpack hidden in nearby bushes. It contained
defendant’s identification, a phone, and some nine-millimeter
ammunition.
An extensive search of the complex ensued. Five
detectives and over a dozen uniformed officers wore tactical
vests with a badge on the front and “Police” printed in large
white letters. Investigators went to each apartment, loudly
identified themselves as police, and directed residents to come
outside. A police helicopter flew overhead to assist the search,
which lasted approximately an hour. Detectives Jim Mackay
and Luke Johnson approached a building with four adjacent
doors leading to a community room and facing the area where
defendant’s backpack was recovered. At trial, witnesses
referred to the doors numerically, with Door 1 being farthest to
the right. Believing the doors led to small rooms or storage
units, Mackay went to Door 1 to see if it was locked. Detective
Luke Johnson provided cover. He stood to the left of Door 1
generally in line with Door 2, and back some distance from the
plane of the doorways. As a result Johnson was positioned about
25 feet away from Door 1 and to the left of it. Johnson testified
he placed himself in line with Door 2 to avoid standing in a “fatal
funnel” near Door 1. He explained: “If someone is going to shoot
you, they’re going to shoot out the door that you opened. So you
don’t want to be standing in that area.”
Mackay stood by the right hinges of Door 1 and reached
across to operate its handle. As he opened the door slightly,
defendant fired once through the opening and twice through the
closed Door 2. Neither officer was hit. All three bullets struck
near dumpsters across a parking lot from where defendant’s
backpack was found. In response, Mackay and Johnson took
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Opinion of the Court by Corrigan, J.
cover and returned fire. Johnson shot five times through Door
1 and Mackay fired three times at the same target.
The shooting stopped. Defendant, who had been shot,
complied with orders to come out of the community room.
Inside, a Sig Sauer nine-millimeter pistol holding seven rounds
was recovered. Two additional magazines, containing a total of
21 rounds, were also taken into evidence. Ballistics testing
confirmed the gun was that used to kill Schade and shoot at the
detectives.
A criminalist testified about the various bullet holes and
trajectories. All of the bullet holes found in Door 1 were made
by shots fired from the outside. Two bullet holes in Door 2 were
made by shots fired from inside the room. The third round
recovered near the dumpsters likely went through the opening
of Door 1 created when Mackay opened it. All three rounds
defendant fired had hollow points, designed to mushroom on
impact.
At trial, in connection with the convenience store crimes,
defendant was convicted of first degree murder, second degree
robbery, and burglary. Various firearm allegations, along with
special circumstance allegations of murder committed during a
robbery and burglary, were found true.1 As to the apartment
complex shooting, defendant was convicted of two counts of
attempted, premeditated murder of a police officer, assault with
a semiautomatic firearm, and assault on a police officer with a
semiautomatic firearm. Attached enhancements were found
1
Penal Code sections 187, subdivision (a); 189, subdivision
(a); 190.2, subdivision (a)(17)(A), (G); 211; 212.5, subdivision (c);
459; 460, subdivision (b); 12022.5, subdivision (a); 12022.53,
subdivisions (b)–(d).
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Opinion of the Court by Corrigan, J.
true.2 Defendant was sentenced to life without the possibility of
parole for the murder of Schade, along with consecutive terms
totaling 55 years to life plus 41 years and four months. Sentence
on the remaining counts and allegations was stayed. The Court
of Appeal modified the judgment to vacate two counts of assault
with a semiautomatic firearm because they were lesser included
offenses of assault on the officers with that weapon. The
judgment was otherwise affirmed. (People v. Mumin (2021) 68
Cal.App.5th 36, 62–63 (Mumin).
II. DISCUSSION
Defendant argues the trial court improperly instructed on
the concurrent intent theory of liability for attempted murder of
both detectives. Before we turn to the proper standard for
reviewing those claims, we summarize the relevant substantive
law.
A. Concurrent Intent and the Law of Attempted
Murder
“In every crime or public offense there must exist a union,
or joint operation of act and intent, or criminal negligence.”
(Pen. Code, § 20.)3 The mental state, or mens rea, that must
accompany each crime is an element of the offense. The mental
state required for the crime of murder is the existence of malice,
which may be either express or implied. (See Pen. Code, §§ 187,
2
Penal Code sections 187, subdivision (a); 189, subdivision
(a); 245, subdivisions (b), (d)(2); 664, subdivision (e); 12022.5,
subdivision (a); 12022.53, subdivisions (b)–(d). Defendant was
additionally convicted of being a felon in possession of a firearm
and ammunition (Pen. Code, §§ 29800, subd. (a)(1); 30305, subd.
(a)(1)).
3
Our discussion here does not touch on strict liability
offenses or crimes of negligence.
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subd. (a); 188.) Malice is express when “there is manifested a
deliberate intention to unlawfully take away the life of a fellow
creature.” (Pen. Code, § 188, subd. (a)(1).) It is implied when “a
defendant act[s] with conscious disregard of the danger to
human life.” (People v. Knoller (2007) 41 Cal.4th 139, 156; see
People v. Smith (2018) 4 Cal.5th 1134, 1165; Pen. Code, § 188,
subd. (a)(2).) Because malice may be implied, second degree
murder does not require a specific intent to kill. To elevate that
offense to murder in the first degree on a malice theory, the
defendant must act with a specific intent to kill that is formed
willfully, deliberately, and with premeditation. (Pen. Code,
§ 189, subd. (a); see CALCRIM No. 521.
Special rules apply when a person tries but fails to
complete an offense. An attempt “consists of two elements: a
specific intent to commit the crime, and a direct but ineffectual
act done toward its commission.” (Pen. Code, § 21a.) In the
context of attempted murder, People v. Bland (2002) 28 Cal.4th
313 (Bland) observed: “The mental state required for attempted
murder has long differed from that required for murder itself.
Murder does not require the intent to kill. Implied malice — a
conscious disregard for life — suffices.” (Id. at p. 327.) However,
attempted murder requires a specific intent to kill.
Bland first examined the contours of the doctrine of
transferred intent as it applied to a completed murder. Under
the doctrine, if a defendant intended to kill A but inadvertently
killed B, the intent to kill A is deemed to transfer to the killing
of B, so that the defendant is guilty of B’s murder. (See Bland,
supra, 28 Cal.4th at pp. 320–321, citing People v. Scott (1996) 14
Cal.4th 544, 546.) Bland then built on that principle to hold
that, even when a defendant succeeds in killing his intended
target, his intent to kill extends to any others he actually kills.
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(See Bland, at pp 321–326.) Bland imposed a limit on its
holding, however. While the intent to kill one target transfers
to others actually killed, the doctrine will not extend that lethal
intent to others who may be assaulted or injured but do not die.
To be guilty of the attempted murder of a person who survives,
the defendant must intend to kill that survivor. (See id. at pp.
326–328.) It is essential to keep clear the distinction between
the sufficiency of implied malice to support a murder conviction
when the victim dies and the requirement of a specific intent to
kill in order to support a charge of attempted murder when the
victim survives.
As Bland explained: “Someone who in truth does not
intend to kill a person is not guilty of that person’s attempted
murder even if the crime would have been murder — due to
transferred intent — if the person were killed. To be guilty of
attempted murder, the defendant must intend to kill the alleged
victim, not someone else. The defendant’s mental state must be
examined as to each alleged attempted murder victim. Someone
who intends to kill only one person and attempts unsuccessfully
to do so, is guilty of the attempted murder of the intended victim,
but not of others.” (Bland, supra, 28 Cal.4th at p. 328.
Bland clarified that, although an intent to kill cannot
transfer to surviving victims, a defendant may nevertheless be
liable for attempted murder under a concurrent intent theory:
“[T]he fact the person desires to kill a particular target does not
preclude finding that the person also, concurrently, intended to
kill others within what [Ford v. State (Md. 1993) 625 A.2d 984]
termed the ‘kill zone.’ ‘The intent is concurrent . . . when 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
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Opinion of the Court by Corrigan, J.
that victim’s vicinity. For example, an assailant who places a
bomb on a commercial airplane intending to harm a primary
target on board ensures by this method of attack that all
passengers will be killed. Similarly, consider a defendant who
intends to kill A and, in order to ensure A’s death, drives by a
group consisting of A, B, and C, and attacks the group with
automatic weapon fire or an explosive device devastating
enough to kill everyone in the group. The defendant has
intentionally created a “kill zone” to ensure the death of his
primary victim, and the trier of fact may reasonably infer from
the method employed an intent to kill others concurrent with
the intent to kill the primary victim. When the defendant
escalated his mode of attack from a single bullet aimed at A’s
head to a hail of bullets or an explosive device, the factfinder can
infer that, whether or not the defendant succeeded in killing A,
the defendant concurrently intended to kill everyone in A’s
immediate vicinity to ensure A’s death. The defendant’s intent
need not be transferred from A to B, because although the
defendant’s goal was to kill A, his intent to kill B was also direct;
it was concurrent with his intent to kill A. Where the means
employed to commit the crime against a primary victim create a
zone of harm around that victim, the factfinder can reasonably
infer that the defendant intended that harm to all who are in
the anticipated zone. This situation is distinct from the
“depraved heart” [i.e., implied malice] situation because the
trier of fact may infer the actual intent to kill which is lacking
in a “depraved heart” [implied malice] scenario.’ ” (Bland,
supra, 28 Cal.4th at pp. 329–330, quoting Ford, at pp. 1000–
1001, fn. omitted.
In Bland the defendant fired into a car with three
occupants. The driver, who appeared to be the primary target,
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Opinion of the Court by Corrigan, J.
was fatally shot. The two passengers survived. Bland
concluded that, though the jury found the defendant primarily
wanted to kill the driver rather than the passengers, “it could
reasonably also have found a concurrent intent to kill those
passengers when defendant and his cohort fired a flurry of
bullets at the fleeing car and thereby created a kill zone. Such
a finding fully supports attempted murder convictions as to the
passengers.” (Bland, supra, 28 Cal.4th at pp. 330–331.
People v. Canizales, supra, 7 Cal.5th 591 reaffirmed
Bland’s concurrent intent theory but articulated its contours
and limitations. It also explained how the theory relates to
proving the specific intent to kill required for attempted murder.
“Bland’s adoption of the kill zone theory meant that a prosecutor
charging attempted murder in a multivictim case had an
additional, alternative ground by which to prove the requisite
intent to kill. Under appropriate facts, the prosecutor could
attempt to show either that the defendant’s 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.” (Canizales, at p. 603). And it noted that “there
are evidentiary bases, other than the kill zone theory, on which
a fact finder can infer an intent to kill for purposes of attempted
murder liability that do not depend on a showing that the
defendant had a primary target . . . .” (Id. at p. 608, citing People
v. Stone (2009) 46 Cal.4th 131, 140 (Stone), and People v. Smith
(2005) 37 Cal.4th 733, 743.
The Canizales case involved a gang-related shooting at a
neighborhood block party. Earlier that day, Canizales had
encountered two rival gang members, Pride and Bolden.
Canizales and fellow gang members, including codefendant
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Opinion of the Court by Corrigan, J.
Windfield, went to the party, where Windfield fired five shots.
He killed one partygoer but missed Pride and Bolden. Canizales
was convicted as an aider and abettor of Windfield’s attempted
murder of Pride and Bolden. (Canizales, supra, 7 Cal.5th at pp.
598–601.) There was substantial evidence that Pride was the
primary target.
Canizales explained the concurrent intent theory relies on
circumstantial evidence to establish that the defendant acted
with the specific intent to kill not only the primary target but
also everyone in the kill zone. “[W]hen the prosecution’s theory
substantially relies on circumstantial evidence, a jury must be
instructed that it cannot find guilt based on circumstantial
evidence when that evidence supports a reasonable conclusion
that the defendant is not guilty.” (Canizales, supra, 7 Cal.5th at
p. 606; see CALCRIM No. 225.
Moreover, Canizales took care to point out that the
concurrent intent theory is a separate and particularly narrow
one. It “may properly be applied only when a jury concludes:
(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 . . . and (2) the alleged attempted
murder victim [who was a secondary 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.” (Canizales, supra, 7 Cal.5th at p. 607; see
id. at p. 597.
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By definition then, a kill zone is an area which a defendant
intentionally creates in order to kill all those within it to ensure
the primary target’s death. Canizales emphasized that when
the theory is relied upon, there must be evidence the defendant
intended to kill a primary target. “ ‘[W]ithout a primary target,
there cannot be concurrent intent because there is no primary
intent to kill as to which the intent to kill others could be
concurrent.’ ” (Canizales, supra, 7 Cal.5th at p. 609, quoting
People v. Medina (2019) 33 Cal.App.5th 146, 155.
Canizales noted that multiple factors bear on whether the
circumstances of the attack sufficiently show a defendant
intended to create a kill zone around a primary target. These
include “the type of weapon used, the number of shots fired
(where a firearm is used), the distance between the defendant
and the alleged victims, and the proximity of the alleged victims
to the primary target.” (Canizales, at p. 607.) The far more
commonplace act of firing one or a few shots at a group may
supply the actus reus for a number of crimes. But, standing
alone, it does not support a conclusion that the shooter intended
to create a kill zone around the primary target in order to ensure
that primary target will die. (See People v. Perez (2010) 50
Cal.4th 222, 232; Stone, supra, 46 Cal.4th at p. 138.) Without
substantial evidence showing the defendant acted with intent to
kill a primary target, the essential basis for a concurrent intent
analysis is not satisfied.
Canizales went on to hold that a concurrent intent
instruction would only have been warranted if there was
substantial evidence that, “if believed by the jury, would support
a reasonable inference that defendants intended to kill everyone
within the “ ‘kill zone.’ ” (Canizales, supra, 7 Cal.5th at pp. 609–
610.) The opinion then turned to the evidentiary record.
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Opinion of the Court by Corrigan, J.
Windfield was 100 feet away from Pride when he fired a
handgun at him. He hit neither Pride nor Bolden. That fact
was not alone dispositive. But considered along with the limited
number of shots fired, Winfield’s distance from Pride, and the
open area into which he fired, there was insufficient evidence to
support a conclusion that the defendants intended to create a
zone of fatal harm around Pride. (See id. at pp. 611–612.
In light of the potential for misapplication of the
concurrent intent theory, Canizales emphasized “that going
forward trial courts must exercise caution when determining
whether to permit the jury to rely upon the kill zone theory.
Indeed, we anticipate there will be relatively few cases in which
the theory will be applicable and an instruction appropriate.
Trial courts should tread carefully when the prosecution
proposes to rely on such a theory, and should provide an
instruction to the jury only in those cases where the court
concludes there is sufficient evidence to support a jury
determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill
everyone in the zone of fatal harm. The use or attempted use of
force that merely endangered everyone in the area is insufficient
to support a kill zone instruction.” (Canizales, supra, 7 Cal.5th
at p. 608; see also id. at p. 597.
B. Conflict in the Courts of Appeal Regarding
Application of Canizales
A conflict has arisen in the Courts of Appeal as to the
proper approach to be applied in reviewing a trial court’s
decision to give a concurrent intent instruction. In re Rayford
(2020) 50 Cal.App.5th 754 (Rayford) involved a habeas petition
seeking relief following Canizales. Rayford and codefendant
Glass were at a party attended by Shadonna and Donisha
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Opinion of the Court by Corrigan, J.
Williams, among others. Glass argued with one Perry.
Shadonna and Donisha left the party, gave Perry a ride to
another location, then returned to their own home, where they
lived with their mother Sheila. Rayford, Glass, and a group of
10 to 30 young men later came to the Williams residence. There
were 13 people in or around the structure, including a number
of children. Several people came outside and Glass said he
wanted to fight with Perry, whom he erroneously believed was
in the house. Sheila said Perry was not present and there would
be no fight. As she tried to get her family and friends back
inside, multiple shots were fired by Glass and Rayford. The
house was hit a number of times and two people were struck.
No one was killed. Sheila asked Glass why he shot at the house
and he said: “ ‘That’s what you bitches get.’ ” (Id. at p. 763.
Glass admitted he went to the house to fight Perry, and Rayford
admitted he came to watch. Each denied bringing a gun or firing
any shots. (Id. at pp. 761–764.) Each was charged with 11
counts of attempted murder with gang and firearm allegations.
The court gave an instruction on concurrent intent (CALJIC No.
8.66.1) and the prosecution relied on that theory. (Rayford, at
pp. 764–765.) The prosecutor admitted Perry was not present
at the home and he was not a victim. He urged that Sheila was
one of the “ ‘primary victims,’ ” along with the two victims who
were hit. (Id. at p. 765.) Following convictions on all allegations,
Rayford and Glass were sentenced to 11 consecutive life
sentences for the attempted murders plus 220 years for the
enhancements. (Ibid.
Rayford’s direct appeal was resolved before Canizales was
decided. The court affirmed both attempted murder convictions,
holding that there was sufficient evidence of a primary target
and creation of a kill zone. (Rayford, supra, 50 Cal.App.5th at
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Opinion of the Court by Corrigan, J.
p. 766.)4 It reasoned that Sheila and a number of others could
have been the defendants’ primary targets because Sheila had
treated Glass with disrespect and that others who tried to
protect Perry disliked the defendants. (Ibid.; see People v.
Rayford (July 18, 2006, B179017) [nonpub. opn.], petn. for
review den. (Nov. 1, 2006, S146142).
On habeas, the Rayford court considered two questions:
1. whether the trial court should have given a concurrent intent
instruction; and 2. whether the given instruction was legally
sound. It correctly held that, in light of Canizales, the
instruction itself was deficient. As a result, it properly granted
habeas relief. (See Rayford, supra, 50 Cal.App.5th at pp. 782–
784.) It is the manner in which the court reviewed the trial
court’s decision to instruct on concurrent intent at all that
missed the mark and is part of the conflict among the courts of
review that we must resolve here.
Rayford pointed to the following language from Canizales:
“[I]n determining whether ‘there is sufficient evidence from
which the jury could find that the only reasonable inference is
that the defendant intended to kill (not merely to endanger or
harm) everyone in the zone of fatal harm,’ we consider the
circumstances surrounding the shooting, including ‘the type of
weapon used, the number of shots fired (where a firearm is
used), the distance between the defendant and the alleged
victims, and the proximity of the alleged victims to the primary
target.’ ” (Rayford, supra, 50 Cal.App.5th at p. 779, quoting
4
The court, however, reversed the gang enhancements for
insufficient evidence, as well as firearm enhancements
dependent on that allegation. (See Rayford, supra, 50
Cal.App.5th at p. 766.
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Canizales, supra, 7 Cal.5th at pp. 597, 607.) The Court of Appeal
observed it had previously affirmed the defendants’ convictions
because “the circumstances of the shooting here support a
reasonable inference the shooters intended to kill everyone in
the zone of fatal harm around Sheila.” (Rayford, at p. 779.) On
habeas review, however, the court held the new authority of
Canizales dictated a different outcome. It cited the “only
reasonable inference” language from Canizales then reasoned:
“[O]ther circumstances support a reasonable alternative
inference more favorable to Rayford and Glass, that the shooters
acted not with the specific intent to kill everyone in and in front
of the house, but with conscious disregard of the risk Sheila and
her family and neighbors might be seriously injured or killed.”
(Ibid.) Because there was another possible inference that the
Court of Appeal itself considered reasonable, it held the
concurrent intent instruction should not have been given. (Id.
at p. 781.
Rayford’s analysis of the issue suggested that, under
Canizales, a trial court should not instruct regarding concurrent
intent, even if a reasonable supporting inference could be drawn
from the evidence, if the court itself concludes another
reasonable inference could be drawn that does not support a
concurrent intent theory. As we explain below, this approach
misconstrues the differing roles of the court and jury.
The Court of Appeal in this case disagreed with Rayford’s
analysis.5 The court reasoned: “Canizales does not depart from,
5
The opinion below was authored by Chief Justice Guerrero
while she served as an associate justice for the Fourth District
Court of Appeal, Division One. She has recused herself from
this case.
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and instead reaffirms, established principles governing a trial
court’s decision to instruct on a theory of liability and an
appellate court’s review of such a decision. The trial court must
determine whether the evidence would support a jury
determination that the only reasonable inference was that the
defendant held the requisite intent. If a trial court’s decision to
instruct is challenged on appeal, we must make the same
determination on de novo review. But, in so doing, the issue is
not whether we believe the only reasonable inference from the
evidence is that the defendant had the requisite intent — just
as, in other substantial evidence contexts, the issue is not
whether we believe the defendant to be guilty beyond a
reasonable doubt. The issue is whether the evidence would
support such a determination by the jury. Under these
circumstances, it is well established that the evidence supports
a jury determination that an inference is the only reasonable
inference if we conclude it is at least a reasonable inference. We
disagree with Rayford to the extent it holds otherwise.”
(Mumin, supra, 68 Cal.App.5th at p. 47.
In this case, the Court of Appeal properly differentiated
between the roles of court and jury. “The distinction between
the jury, on one hand, and the appellate court, on the other,
reflects the fundamental rule that the jury, not the appellate
court, must be convinced of the defendant’s guilt beyond a
reasonable doubt. A jury must acquit a defendant if a
reasonable alternative interpretation of the evidence suggests
innocence, because it necessarily creates reasonable doubt . . . .
But if an appellate court identifies a reasonable alternative
interpretation based on its own review of the evidence, it does
not necessarily compel reversal, because an appellate court need
not be convinced of a defendant’s guilt beyond a reasonable
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doubt. Instead, as noted, the appellate court asks whether the
jury could have found the defendant guilty beyond a reasonable
doubt. It is the jury, of course, that sees and hears the evidence.
The appellate court has only the cold record before it. An
appellate court’s ability to identify a reasonable alternative
inference suggesting innocence does not mean that the jury,
viewing the evidence live at trial, could not have rejected that
inference as unreasonable.” (Mumin, supra, 68 Cal.App.5th at
p. 50.) The court observed that Canizales, in applying the
principles it set forth, “did not require that the appellate court
itself determine whether the inference supporting the
instruction was the only reasonable inference. Instead, it
explained, ‘an instruction on the kill zone theory would have
been warranted in this case only if there was substantial
evidence in the record that, if believed by the jury, would
support a reasonable inference that defendants intended to kill
everyone within the “kill zone.” ’ [Citation.] In other words,
‘ “ ‘evidence must appear in the record which, if believed by the
jury, will support the suggested inference.’ ” ’ [Citation.] An
appellate court need not determine that such an inference is the
only reasonable inference.” (Id. at p. 51.) The Court of Appeal
stated Canizales’s “only reasonable inference” formulation “is
simply another way of saying that the evidence must support a
defendant’s guilt beyond a reasonable doubt. It does not imply
any change to the established standard of review where the
prosecution relies on circumstantial evidence. If the evidence
supports a reasonable inference of the requisite intent, it
necessarily follows that the jury could find it was the only
reasonable inference.” (Id. at p. 52.) Thus, “to the extent [the]
Rayford [court] believed that one reasonable inference from the
evidence would support a kill zone instruction under Canizales,
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but a reasonable alternative inference would not, the correct
result would have been to uphold the instruction.” (Id. at pp.
53–54.) This is so because we presume the jury followed the
instruction that it could rely on circumstantial evidence to
convict only if it finds the inference pointing to guilt is the only
reasonable one based on its evaluation of the evidence.
C. The Substantial Evidence Standard Applies to
Giving or Reviewing a Concurrent Intent
Instruction
In light of this conflict, the question becomes who must
determine whether the inference pointing to guilt is the only
reasonable inference: the judge or the jury? Established
precedent dictates that the final determination is for the jury
alone. Yet, if the jury has the last word on that point, what is
the role of the trial court in deciding how the jury should be
instructed as to available theories, and how should that trial
court ruling be considered on appeal? Defendant contends a
standard more stringent than substantial evidence must be
satisfied before a court may instruct on a concurrent intent
theory under Canizales. He urges that both trial and appellate
courts themselves must conclude from the evidence “that the
only reasonable inference is that the defendant intended to
create a zone of fatal harm . . . .” (Canizales, supra, 7 Cal.5th at
p. 597.) The argument fails. Canizales did not depart from the
traditional substantial evidence inquiry. The analysis at both
the trial and appellate level looks to whether substantial
evidence supports giving the challenged instruction.
In the context of a criminal case, the substantial evidence
standard stems from the requirement that a criminal conviction
necessitates “proof beyond a reasonable doubt of every fact
necessary to constitute the crime . . . .” (In re Winship (1970
17
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
397 U.S. 358, 364.) That safeguard “dates at least from our early
years as a Nation.” (Id. at p. 361.) In holding that due process
requires such proof, the high court in Winship explained that
“[t]he reasonable-doubt standard plays a vital role in the
American scheme of criminal procedure. It is a prime
instrument for reducing the risk of convictions resting on factual
error. The standard provides concrete substance for the
presumption of innocence — that bedrock ‘axiomatic and
elementary’ principle whose ‘enforcement lies at the foundation
of the administration of our criminal law.’ ” (Id. at p. 363; see
also Apprendi v. New Jersey (2000) 530 U.S. 466, 476–478.
“Winship presupposes as an essential of the due process
guaranteed by the Fourteenth Amendment that no person shall
be made to suffer the onus of a criminal conviction except upon
sufficient proof — defined as evidence necessary to convince a
trier of fact beyond a reasonable doubt of the existence of every
element of the offense.” (Jackson v. Virginia (1979) 443 U.S.
307, 316 (Jackson).) Jackson clarified that, in order to preserve
that due process right, the critical inquiry in a criminal appeal
“must be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.
But this inquiry does not require a court to ‘ask itself whether it
believes that the evidence at the trial established guilt beyond a
reasonable doubt.’ [Citation.] Instead, the relevant question is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
[Citation.] This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
18
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
inferences from basic facts to ultimate facts. Once a defendant
has been found guilty of the crime charged, the factfinder’s role
as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.” (Id.
at pp. 318–319, fn. omitted; see People v. Cuevas (1995
12 Cal.4th 252, 260–261; People v. Johnson (1980) 26 Cal.3d
557, 578.
Thus, an appellate court retrospectively inquires whether
a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt, based on all the evidence when
viewed in the light most favorable to the prosecution.
“Sufficiency review essentially addresses whether ‘the
government’s case was so lacking that it should not have even
been submitted to the jury.’ ” (Musacchio v. United States (2016
577 U.S. 237, 243; see Pen. Code, § 1118.1.) In determining
whether a case should be submitted to the jury in the first
instance, the trial court’s inquiry mirrors an appellate court’s
analysis regarding the sufficiency of the evidence, except the
trial court must necessarily assess prospectively whether
substantial evidence exists from which a rational jury could
convict the defendant beyond a reasonable doubt.
A corollary of that rule is a court may instruct the jury
regarding a particular theory of conviction only if substantial
evidence would allow a rational jury to find that theory
supported by the facts. For example, we have repeatedly applied
the substantial evidence standard when evaluating whether a
court must instruct on lesser included offenses. “Instruction on
a lesser included offense is required only when the record
contains substantial evidence of the lesser offense, that is,
evidence from which the jury could reasonably doubt whether
19
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
one or more of the charged offense’s elements was proven, but
could find all the elements of the included offense proven beyond
a reasonable doubt.” (People v. Moore (2011) 51 Cal.4th 386,
408–409; see, e.g., People v. Steskal (2021) 11 Cal.5th 332, 345;
People v. Vargas (2020) 9 Cal.5th 793, 827; People v. Lopez
(2020) 9 Cal.5th 254, 269; People v. Westerfield (2019) 6 Cal.5th
632, 718.) Similarly, courts have observed that “[t]he test for
determining whether instructions on a particular theory of guilt
are appropriate is whether there is substantial evidence which
would support conviction on that theory.” (People v. Nguyen
(1993) 21 Cal.App.4th 518, 528; see also People v. Campbell
(1994) 25 Cal.App.4th 402, 408.) In making these
determinations, the trial court does not inquire whether it would
convict of a lesser crime than that charged or whether it would
find a given theory has been proven. Instead the court considers
whether a rational jury could so decide.
The question here is whether Canizales departed from the
traditional substantial evidence test and articulated a new
standard for giving an instruction or reviewing that decision on
appeal. In support of his argument, defendant attempts to rely
on language in Canizales that a concurrent intent instruction
should only be given “where the court concludes there is
sufficient evidence to support a jury determination that the only
reasonable inference from the circumstances of the offense is
that a defendant intended to kill everyone in the zone of fatal
harm.” (Canizales, supra, 7 Cal.5th at p. 608; see also id. at
p. 597.) Canizales does not support the conclusion defendant
urges. He overlooks the fact that Canizales expressly referred
to evidence supporting the jury’s findings. In deciding whether
to give the instruction, the court considers whether substantial
evidence exists from which the jury could draw the required
20
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
inference. If so, the instruction is justified. Ultimately, it
remains for the jury to determine whether that inference is the
only reasonable one. The trial court may not preemptively
substitute its view of the evidence for that of the jury. The
standard is the same for appellate review.
Rather than viewing any passage from Canizales in
isolation, it is important to examine the context in which the
case referred to “the only reasonable inference.” As the Court of
Appeal below noted (Mumin, supra, 68 Cal.App.5th at p. 47), the
“only reasonable inference” language derives from Canizales’s
observation that “[t]he kill zone theory looks to circumstantial
evidence to support a permissive inference regarding a
defendant’s intent. This is not unusual. As we have described
on many occasions, intent to kill often must be inferred from
circumstantial evidence surrounding the crime. [Citation.] And
when the prosecution’s theory substantially relies on
circumstantial evidence, a jury must be instructed that it cannot
find guilt based on circumstantial evidence when that evidence
supports a reasonable conclusion that the defendant is not
guilty.” (Canizales, supra, 7 Cal.5th at p. 606.) For this
proposition, Canizales cited People v. Bender (1945) 27 Cal.2d
164, which reasoned that a jury cannot rely on circumstantial
evidence to convict if a reasonable inference from such evidence
points to innocence. Bender went on to observe that its analysis
“enunciates a most important rule governing the use of
circumstantial evidence,” and “it should be declared to the jury
in every criminal case wherein circumstantial evidence is
received.” (Id. at p. 175.
Canizales also pointed to CALCRIM No. 225, the standard
jury instruction on circumstantial evidence, which explains in
part that “[i]f you can draw two or more reasonable conclusions
21
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Opinion of the Court by Corrigan, J.
from the circumstantial evidence, and one of those reasonable
conclusions supports a finding that the defendant did have the
required (intent/ [and/or] mental state) and another reasonable
conclusion supports a finding that the defendant did not, you
must conclude that the required (intent/ [and/or] mental state
was not proved by the circumstantial evidence.” In other words,
if a juror draws an inference that is not consistent with guilt and
concludes that inference is reasonable in light of persuasive
evidence, he or she must conclude there is reasonable doubt.
Canizales consistently kept its focus on what a jury could
determine. It did not mention or suggest a deviation from
settled law or hint at a different analytical framework for
deciding whether to instruct on concurrent intent or for
reviewing that decision on appeal.
Immediately after this discussion regarding the jury’s role
in evaluating circumstantial evidence, Canizales concluded
“that the kill zone theory for establishing the specific intent to
kill required for conviction of attempted murder may properly
be applied only when a jury concludes” the defendant intended
to kill his primary target, the nature of his attack demonstrated
he also intended to assure the target’s death by creating a zone
of fatal harm around him, and that an alleged attempted murder
victim was in that zone. (Canizales, supra, 7 Cal.5th at p. 607,
italics added.) “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.” (Ibid.) Canizales then listed several factors “the
jury should consider” when “determining the defendant’s intent
to create a zone of fatal harm and the scope of any such
zone . . . .” (Ibid.
22
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
Canizales included the “only reasonable inference” caveat
to explain how the jury should evaluate circumstantial evidence
relating to the defendant’s intent. This discussion of the jury’s
role does not suggest a departure from the traditional
substantial evidence standard in evaluating whether the court
has properly instructed on a particular theory of conviction.
Further, as the Court of Appeal here reasoned, Canizales’s
application of its stated standard confirms it was applying
ordinary substantial evidence principles. (See Mumin, supra,
68 Cal.App.5th at pp. 48–52.) Canizales explained at the outset
that “an instruction on the kill zone theory would have been
warranted in this case only if there was substantial evidence in
the record that, if believed by the jury, would support a
reasonable inference that defendants intended to kill everyone
within the ‘kill zone.’ ” (Canizales, supra, 7 Cal.5th at pp. 609–
610.) To justify such an instruction, “the record would need to
include (1) evidence regarding the circumstances of defendants’
attack on Pride that would support a reasonable inference that
defendants intentionally created a zone of fatal harm around
him, and (2) evidence that Bolden was located within that zone
of fatal harm.” (Id. at p. 610.) We ultimately concluded “the
evidence concerning the circumstances of the attack (including
the type and extent of force used by Windfield) was not sufficient
to support a reasonable inference that defendants intended to
create a zone of fatal harm around a primary target.” (Id. at p.
610.) Canizales also noted, “Because we conclude that the
evidence here is insufficient to support a finding that defendants
intended to create a zone of fatal harm, we have no occasion to
determine the scope of any such zone given these facts.” (Id. at
p. 611, italics added.) Canizales’s repeated references to a lack
of substantial evidence to support “a reasonable inference” or “a
23
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
finding” that the defendants intended to create a kill zone
constituted nothing more than an application of the traditional
substantial evidence standard, which asks whether the evidence
is such that a rational trier of fact could have found guilt beyond
a reasonable doubt. (See Jackson, supra, 443 U.S. at pp. 318–
319.
The substantial evidence standard “gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” (Jackson, supra,
443 U.S. at p. 319.) As we have stated in the context of
postconviction review for evidentiary sufficiency: “Conflicts and
even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province
of the trial judge [in a court trial] or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends.” (People v. Maury (2003) 30
Cal.4th 342, 403.) Ultimately, it is within the jury’s exclusive
province to determine whether an inference that may be drawn
from the evidence is, in fact, the only reasonable one, a
determination that depends on its resolution of conflicting
evidence and weighing the credibility of witnesses. As we
recognized long ago, “[i]t may be confidently declared that,
founded upon the evidence, the jury not only is authorized to
make any logical and reasonable deduction, but also that the
jury is the exclusive judge of the weight and value of the
inference that may be drawn by it . . . .” (Hamilton v. Pacific
Elec. Ry. Co. (1939) 12 Cal.2d 598, 602.) The standard for which
defendant advocates would allow the trial court to usurp the
jury’s province. Under the defense theory, the court could draw
its own inferences and compare them to other possible
24
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
inferences. Such an approach would have the court resolve
conflicts in the evidence and weigh the testimony of witnesses.
Yet “[t]o do so would be a clear usurpation of the jury’s exclusive
function.” (Hicks v. Ocean Shore Railroad, Inc. (1941) 18 Cal.2d
773, 781.
Defendant suggests a heightened instructional standard
is necessary to address Canizales’s concern that a jury may
misapply the concurrent intent theory. Canizales cautioned
that “trial courts must be extremely careful in determining
when to permit the jury to rely upon the kill zone theory,”
observing: “As past cases reveal, there is a substantial potential
that the kill zone theory may be improperly applied, for
instance, where a defendant acts with the intent to kill a
primary target but with only conscious disregard of the risk that
others may be seriously injured or killed. Accordingly, in future
cases trial courts should reserve the kill zone theory for
instances in which there is sufficient evidence from which the
jury could find that the only reasonable inference is that the
defendant intended to kill (not merely to endanger or harm
everyone in the zone of fatal harm.” (Canizales, supra, 7 Cal.5th
at p. 597.) The best protection against a jury’s improper
application of a concurrent intent theory is to make sure that it
receives proper instruction on that theory and only in the
narrow and particularized circumstances to which it may
legitimately be applied.
But, in emphasizing the duty to protect against juror
confusion or improper application, Canizales did not articulate
a different or higher standard of review in concurrent intent
cases. Rather, by explaining how the jury should apply
conventional circumstantial evidence rules, and by focusing on
the physical factors informing whether a defendant has
25
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
exhibited an intent to create a kill zone (see discussion post),
Canizales emphasized that only a rare set of circumstances
would warrant a concurrent intent instruction and “there will
be relatively few cases in which the theory will be applicable and
an instruction appropriate.” (Canizales, supra, 7 Cal.5th at
p. 608.) Courts should reserve instruction to those fairly
unusual cases where the facts fit the theory. They should also
take care to “describe the contours and limits of the kill zone
theory . . . .” (Id. at p. 609.
In urging that a trial court can pre-weigh, or a reviewing
court can reweigh, the evidence, defendant misconstrues an
important part of the Canizales analysis. On review the test
remains whether substantial evidence had been presented to
support a reasonable inference by the jury “that defendant[]
intended to create a zone of fatal harm around a primary target.”
(Canizales, supra, 7 Cal.5th at p. 610.) We disapprove In re
Rayford, supra, 50 Cal.App.5th 754 to the extent it suggested a
different standard of review applies.
D. A Concurrent Intent Instruction Was Not
Supported by Substantial Evidence
Although we decline defendant’s invitation to change the
standard of review, we agree that a concurrent intent
instruction should not have been given based on the evidence
here.
Justification for instructing on concurrent intent requires
substantial evidence that: 1. the defendant intended to kill a
primary target; 2. he concurrently intended to achieve that goal
by killing all others in the fatal zone he creates; and 3. the
alleged attempted murder victim was in that zone. These
requirements protect against an improper attempted murder
26
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
conviction based only on a conscious disregard for life.
“Evidence that a defendant who intends to kill a primary target
acted with only conscious disregard of the risk of serious injury
or death for those around a primary target does not satisfy the
kill zone theory. . . . [T]he kill zone theory does not apply where
‘the defendant merely subjected persons near the primary target
to lethal risk. Rather, in a kill zone case, the defendant has a
primary target and reasons [that] he cannot miss that intended
target if he kills everyone in the area in which the target is
located. In the absence of such evidence, the kill zone
instruction should not be given.’ ” (Canizales, supra, 7 Cal.5th
at p. 607.) Canizales found significant that the attack there
“occurred at a block party on a wide city street, not in an
alleyway, cul-de-sac, or some other area or structure from which
victims would have limited means of escape.” (Id. at p. 611.
Clearly, defendant’s conduct endangered Johnson’s life.
When defendant fired, Johnson stood to the left and away from
Door 1 and in front of Door 2. Two of defendant’s three shots
went through Door 2 at a point about four feet off the ground.
Although Johnson was not hit, he easily could have been.
However, though Johnson was placed in harm’s way, a
concurrent intent instruction would only have been warranted
if defendant acted not with a mere conscious disregard for life
but with a specific intent to kill. To prove that intent, the
prosecution invoked the concurrent intent theory. The
Canizales factors demonstrate that reliance was misplaced.
First, defendant fired three shots from a handgun, fewer
than the five shots found insufficient in Canizales. (See
Canizales, supra, 7 Cal.5th at pp. 610–611.) Though we do not
suggest categorically that a kill zone can never be created with
a relatively small number of shots, that number must be
27
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
considered together with the area into which they are fired. For
example, People v. Dominguez (2021) 66 Cal.App.5th 163
involved the firing of “21 shots into a small space enclosed on
three sides.” (Id. at p. 187.) Concurrent intent cases involving
vehicle shootings have been described as employing a “flurry”
(Bland, supra, 28 Cal.4th at p. 331) or “hail” (People v. Tran
(2018) 20 Cal.App.5th 561, 567) of bullets. Canizales contrasted
its five-shot case with the facts of two other cases. One involved
a residential shooting with “[a]t least 50 bullet holes . . . .”
(People v. Vang (2001) 87 Cal.App.4th 554, 558.) In another, the
defendant “fired as many as ten shots at four people standing in
close proximity to one another.” (Washington v. U.S. (D.C.Cir.
2015) 111 A.3d 16, 24; see Canizales, at p. 610.) The fact a
defendant chose to shoot into a confined space or at a defined
group in close proximity to each other strengthens the inference
that the creation of a kill zone was intended. In that sense, the
size of the confined space or the close grouping of the targets
helps define the intended zone of fatal harm.6
Although three shots might be sufficient to create a zone
of fatal harm around a primary target in a confined space or in
the midst of a tight group, the situation here is the converse.
6
The Attorney General asserts Mumin did not shoot more
than three rounds because he was wounded by the officers’
return fire. But the inference of intent to create a kill zone is
drawn from what the defendant did and the amount of force
actually used. While there may be a plausible explanation for
why he did not fire more shots, it is not sufficient to argue he
might have kept shooting and from that speculation infer that
he would have intentionally created a kill zone. Canizales
teaches we may only evaluate the intent to create a kill zone
based upon the actual circumstances. (See Canizales, supra, 7
Cal.5th at pp. 609–611.
28
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
The defendant fired from the confines of the community room
out into an open area. As in Canizales, the openness of the space
created opportunities to escape or to take protective cover. On
the facts presented here, it is difficult to identify the scope of an
alleged zone of fatal harm other than to say it was outside the
room where defendant was hiding.
Second, neither detective was hit. Canizales cautioned
that whether a defendant intentionally created a lethal zone
does not turn on “the effectiveness or ineffectiveness of the
defendant’s chosen method of attack.” (Canizales, supra, 7
Cal.5th at p. 611.) However, the absence of injury to a secondary
target is one factor to consider in determining whether the
defendant intended to kill secondary targets. It is the overall
nature of the zone created and the means used to ensure
lethality that often provides the most telling evidence of the
actor’s intent. As the Bland court pointed out in embracing the
concurrent intent doctrine, the theory rests on an inference
drawn from “ ‘the nature and scope of the attack,’ ” which was
“devastating enough to kill everyone in the group.” (Bland,
supra, 28 Cal.4th at pp. 329–330.
Third, it is true that defendant here was much closer to
Mackay than the defendants in Canizales. (See Canizales,
supra, 7 Cal.5th at p. 611.) If defendant were near Door 1 when
he fired, he would also have been close to Mackay, on the other
side of the door. However, Johnson was at least 25 feet away
and off to the side, in line with Door 2. This fact is relevant
because, generally, the farther away a secondary victim is from
a primary target, the greater the force necessary to demonstrate
an intent to create a lethal zone encompassing both the primary
target and the others the defendant is alleged to have
concurrently intended to kill.
29
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
Here it is undisputed that defendant fired three shots from
a handgun into an open area, where the alleged primary and
secondary targets were positioned at least 25 feet apart and
neither was hit. Given the open area, neither the number of
shots fired nor the weapon used are sufficient to suggest
defendant acted to create a kill zone around Mackay in order to
ensure his death. Had Johnson died, the jury could have
convicted defendant of his murder based either on a theory of
transferred intent or implied malice. What makes this case
different is the particular showing of specific intent to kill
required to sustain an attempted murder charge. As we
clarified in Canizales: “[T]he kill zone theory does not apply
where ‘the defendant merely subjected persons near the primary
target to lethal risk.’ ” (Canizales, supra, 7 Cal.5th at p. 607.
The Court of Appeal upheld the attempted murder
conviction as to Johnson, reasoning as follows. “Based on the
evidence, the jury could reasonably have found the following:
Mumin armed himself with a semiautomatic firearm and
hollow-point bullets. Hollow-point bullets are particularly
damaging based on their design. Mumin had recently fatally
shot a nonthreatening individual who would not comply with his
demands. After trying and failing to escape from his apartment
complex, Mumin hid in the community room with his loaded
firearm. He heard numerous police officers calling around the
apartment complex, as well as a police helicopter overhead.
When Mackay began to open Door 1, Mumin believed the police
had found his hiding place. In rapid succession, Mumin fired
through the opening at Door 1 and swept over to Door 2, firing
two more shots that penetrated through the closed door and
struck objects some distance away. The jury could reasonably
conclude, based on this evidence, that Mumin was unsure
30
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
exactly where the police officer opening the door was located and
intended to create a zone of fatal harm in front of both double
doors, killing anyone in that zone in order to ensure that the
police officer (Mackay) would be killed as well. It was the last
stand of a desperate killer who had endured more than an hour
in the community room listening and waiting for police to find
him.” (Mumin, supra, 68 Cal.App.5th at pp. 57–58.
The analysis is overbroad. Many of the cited
circumstances might support an independent intent to kill or
explain why Mumin would be motivated to shoot and kill
Mackay to avoid arrest. The circumstances also support an
inference that Mumin had the capacity to create a zone of fatal
harm using a semiautomatic handgun with hollow point rounds.
Yet the essential fact in question remains defendant’s intent.
This inquiry lies at the heart of the concurrent intent analysis.
To convict of attempted murder on a concurrent intent theory, it
is not enough to conclude that the defendant intended to kill the
target and simply ran the risk that others might be killed.
The Attorney General argues that “Mumin rapidly shot
three bullets at Doors 1 and 2, the entrances closest to Mackay
because he did not know Mackay’s exact position and he needed
to ensure Mackay’s death. [Citations.] Mumin fired the bullets
at Door 2 at . . . a height that was capable of striking an officer
standing on the other side of the door. [Citation.] In doing so,
Mumin intended to kill the multiple officers he believed to be on
the other side of those doors, thereby creating a kill zone.”
As Canizales recognized, depending on the evidence, a jury
might conclude the actor harbored independent intents to kill
each person within the range of his explosive or weapon fire.
(See Canizales, supra, 7 Cal.5th at p. 608.) But that is not a
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PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
concurrent intent case. It does not depend on a finding that the
actor intended to kill a primary target and created a kill zone
intending to kill everyone else in it to ensure the target’s death.
Thus, contrary to the Attorney General’s suggestion, even
assuming there was evidence Mumin intended to
indiscriminately kill everyone in a particular area, a question
we need not decide, such evidence would not have supported
instructing the jury on concurrent intent.
E. The Error Was Prejudicial as to the Allegation
of Attempting to Kill Johnson
Having concluded the concurrent intent instruction
should not have been given with regard to the Johnson count
(count 5), we turn to the question of prejudice and how that
question should be evaluated.
When a jury has been instructed on both proper and
improper theories for conviction, the appropriate standard of
prejudice turns on the type of error involved. If the improper
theory “is incorrect only because the evidence does not support
it” (People v. Aledamat (2019) 8 Cal.5th 1, 7 (Aledamat)),
reversal is not required if “a valid ground for the verdict
remains, absent an affirmative indication in the record that the
verdict actually did rest on the inadequate ground” (People v.
Guiton (1993) 4 Cal.4th 1116, 1129). Presentation of a factually
inadequate theory constitutes an error “of state law subject to
the traditional Watson test . . . .” (Id. at p. 1130.)7 By contrast,
a legally inadequate theory is not merely incorrect because it is
7
Under Watson, reversal is not required unless it is
reasonably probable that a result more favorable to the
appellant would have been reached in the absence of the error.
(People v. Watson (1956) 46 Cal.2d 818, 836.
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PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
factually wanting but “because it is contrary to law.” (Aledamat,
at p. 7.) When a given instruction misstates the law, the more
demanding standard of Chapman v. California (1967) 386 U.S.
18, 24, applies, requiring reversal unless the error was harmless
beyond a reasonable doubt. “ ‘[L]egal error requires a more
stringent standard for prejudice . . . [because] jurors are
presumed to be less able to identify and ignore an incorrect
statement of law due to their lack of formal legal training.
[Citation.] Factual errors, on the other hand, are less likely to
be prejudicial because jurors are generally able to evaluate the
facts of a case and ignore factually inapplicable theories.’ ”
(Aledamat, at p. 8.) Here, the prosecutor attempted to rely on a
concurrent intent theory to prove an intent to kill Johnson.
The court gave an earlier version of CALCRIM No. 600 but
modified it, attempting to incorporate the Canizales factors.8
The modified instruction began by stating that, to prove the
commission of attempted murder, the People must prove
defendant “took at least one direct but ineffective step toward
killing another person” and “intended to kill that person.” The
instruction defined “direct step,” then continued: “The
defendant must possess the intent to kill a human being. It is
not required defendant intended to kill a specific human being.”
These general principles were accurately described.
The court went on to state, however: “A person may intend
to kill a specific victim or victims and at the same time intend
to kill everyone in a particular zone of fatal harm or ‘kill zone.’
8
The trial here began in September 2019, three months
after our Canizales decision.
33
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
“In order to convict the defendant of the attempted murder
of Officer Luke Johnson, the People must prove that the
defendant not only intended to kill the person opening the door
[Mackay] but also either intended to kill Officer Luke Johnson
or any other officer outside the door attempting to apprehend
him or intended to kill everyone within the kill zone. If you have
a reasonable doubt whether the defendant intended to kill
Officer Luke Johnson or any other officer outside the door
attempting to apprehend him, or intended to kill the person
opening the door by killing everyone in the kill zone, then you
must find defendant not guilty of the attempted murder of
Officer Luke Johnson.
“To determine whether the defendant intended to create a
zone of fatal harm or ‘kill zone’ and the scope of any such zone,
consider the circumstances of the offense, such as the type of
weapon used, the number of shots fired, the distance between
the defendant and the alleged victims, and the proximity of the
alleged victims to the primary target.
“This theory may only be used to convict the defendant of
the attempted murder of Officer Luke Johnson if it is proven
that the defendant intended to kill everyone in the zone of fatal
harm. It is insufficient that the defendant acted with conscious
disregard of the risk that others may be seriously injured or
killed by his actions.” (Italics added.
As given, the instruction made an intent to kill Mackay
the analytical foundation from which to infer an intent to kill
Johnson. Thus it relied exclusively on a concurrent intent
34
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
analysis.9 The ineffective attempt to modify CALCRIM No. 600
resulted in a confusing amalgam that explicitly linked the
Johnson attempted murder to a concurrent intent approach.
The given instruction did use the phrase “kill zone,” but it did
not otherwise define the term or require a finding that
defendant intended to create a kill zone around Mackay in order
to ensure his death. As a result, it gave no guidance as to how
the jury should determine whether Johnson, or any other officer
outside the doors for that matter, was actually in the kill zone,
as Canizales requires. (Canizales, supra, 7 Cal.5th at pp. 609–
610.
As discussed, the existence and location of a primary
target is important because those facts help define the extent of
the kill zone, which is necessary in order for the jury to
determine whether the secondary target was within that zone.
An inference as to the intent to kill is logically linked to the
degree of lethal force the defendant has been proven to exert. It
would not be reasonable to conclude the defendant intended to
kill someone demonstrably outside the zone he intentionally
created.10 On the facts here, because the defendant shot into an
undelineated open area, the jury would have been at sea
9
As Canizales noted, there can be other available
independent intent theories that do not rely on a concurrent
intent analysis. (See Canizales, supra, 7 Cal.5th at p. 608). We
have no occasion to discuss those theories here.
10
On this point, CALCRIM No. 600 now provides: “A person
may intend to kill a primary target and also [a] secondary
target[s] within a zone of fatal harm or ‘kill zone.’ A ‘kill zone’
is an area in which the defendant used lethal force that was
designed and intended to kill everyone in the area around the
primary target.” (Italics added.
35
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
attempting to decide just how far the alleged kill zone
extended.11
Canizales held the concurrent intent instruction given
there and the state’s argument were legally faulty because the
“prosecutor’s definition of the kill zone as an area in which
people ‘can get killed’ or are in a ‘zone of fire’ was significantly
broader than a proper understanding of [what] the theory
permits. Indeed, it essentially equated attempted murder with
implied malice murder. [Citation.] Thus, the prosecutor’s
argument had the potential to mislead the jury to believe that
the mere presence of a purported victim in an area in which he
or she could be fatally shot is sufficient for attempted murder
liability under the kill zone theory.” (Canizales, supra, 7 Cal.5th
at p. 614.
11
In In re Sambrano (2022) 79 Cal.App.5th 724, the court
suggested a kill zone instruction could be reduced to a single
sentence along these lines: “If, having considered all the
circumstances of the attack, you find beyond a reasonable doubt
that the defendant intended to kill <insert name of primary
target> by killing everyone in the area in which <insert name of
primary target> was located, then you may infer, but are not
required to infer, that the defendant intended to kill everyone in
that area.” (Id. at p. 734, fn. 3.) This suggested instruction
contravenes Canizales because it omits the very factors that
case directed the jury should be told to consider. (See Canizales,
supra, 7 Cal.5th at p. 607 [describing the contours and limits of
the concurrent intent theory and relevant circumstances the
jury should consider].) As importantly, it fails to require the
second Canizales point essential to support the intent inference:
a finding that the attempted murder victim was located in the
kill zone. In re Sambrano, supra, 79 Cal.App.5th 724 is
disapproved to the extent it conflicts with Canizales as well as
the views expressed herein.
36
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
The inadequacy of the instruction here was similarly
exacerbated by the prosecution’s closing argument. The district
attorney urged defendant knew the police were after him and
intended to kill Mackay, the officer opening the door to his
hideout. As to Johnson, the prosecutor admitted: “I can’t prove
the defendant knew Detective Johnson was standing in the
exact position that he was. But the evidence supports, based on
the defendant’s action, that the defendant, when he fired those
three rounds through the door, intended to kill the person
opening the door and intended to kill anyone near him
attempting to apprehend him.” Those could be legally sufficient
theories, depending on the evidence, but they are not concurrent
intent theories. That explanation only relied on the defendant’s
direct intents to kill independent of an identified primary target:
an intent to kill Mackay, the person opening the door; and an
intent to kill anybody else attempting to apprehend him. Only
then did the district attorney seem to shift her focus to the kill
zone. “There is no doubt that Detective Johnson was in that kill
zone. That the defendant, when he hid himself behind those
three doors, fired those three rounds through the doors, that he
attempted to kill not only the officer opening the door, but every
single officer who was near him, who was there to apprehend him
after he was located.” (Italics added.
The prosecutor’s argument did not properly characterize a
kill zone as being the area around Mackay; the extent of which
was to be evaluated in terms of the number of shots fired, the
distance between defendant and the alleged secondary victim,
and the distance between a secondary victim and Mackay.
Instead she described an amorphous area that encompassed any
officer outside the doors who was there to arrest him. She did
not argue that Mumin intended to kill Mackay as his primary
37
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
target and, inferentially, intended to kill every secondary target
around him to ensure Mackay died. The argument falls short
for the same reasons the court’s instructions missed the mark.
So we are left with the following conclusions.
The concurrent intent instruction should not have been
given because it was factually unsupported. The instruction
that was given was also not legally sound, nor was the
prosecution’s argument on that point. Just as in Canizales,
“there is a reasonable likelihood that the jury understood the
kill zone instruction in a legally impermissible manner.”
(Canizales, supra, 7 Cal.5th at p. 614.) Accordingly we apply the
Chapman standard, which permits an affirmance only when,
“after examining the entire cause, including the evidence, and
considering all relevant circumstances, [the court] determines
the error was harmless beyond a reasonable doubt.” (Aledamat,
supra, 8 Cal.5th at p. 13.
Applying that standard, we cannot conclude the error was
harmless beyond a reasonable doubt as to the attempted murder
count involving Johnson. As Bland and Canizales make clear
(see discussion, ante, at pp. 8−9) the concurrent intent theory is
an alternative way to prove the required intent to kill a
surviving victim. Here the prosecutor acknowledged there was
no evidence defendant targeted Johnson directly. As a result,
she tried to prove the required intent to kill him by relying on
the alternative concurrent intent theory. The Attorney General
suggests “there was overwhelming evidence Mumin intended to
kill the multiple officers he believed were outside the community
room,” including Johnson, because “Mumin needed to kill all
[the] officers he believed were present — and not just the one
opening the door — to escape.” The suggestion is not well taken.
Even granting that a reasonable jury could have so concluded,
38
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
“a reviewing court may hold the error harmless where it would
be impossible, based on the evidence, for a jury to make the
findings reflected in its verdict without also making the findings
that would support a valid theory of liability.” (Lopez, supra, 14
Cal.5th at p. 568; see Aledamat, supra, 8 Cal.5th at p. 15.
Under the present circumstances, the jury’s verdict does not
necessarily reflect the jury made the factual inference urged by
the People. The gun and magazines recovered in the community
room showed defendant had 28 more rounds at his disposal after
he fired only three. The conclusions the jury could have drawn
from that evidence are several, some of which are more
inculpatory than others. Ultimately, it is not for us to reweigh
the evidence in hindsight.
The concurring opinion acknowledges that, in an
appropriate factual scenario, juries may validly rely on the
concurrent intent theory to convict a defendant of the attempted
murder of a secondary victim. (See conc. opn., post, at pp. 2–3.
However, the concurrence suggests we “heed the lessons of
experience” and no longer actually instruct juries on that theory,
instead leaving the matter to be explained by counsels’
argument. (Id. at p. 18; see also id. at p. 3.) The concurrence
asserts that 46 of 70 Court of Appeal decisions released after
Canizales have cited that decision in finding instructional error.
(See id. at p. 10; see also conc. opn., post, Appen. A.) Yet the
concurrence also acknowledges that 42 of those 46 cases
involved trials predating Canizales. (Id. at p. 10.) Canizales
explicitly noted that earlier decisions “articulating the kill zone
theory are incomplete to the extent that they do not require a
jury to consider the circumstances of the offense in determining
the application of the kill zone or imply that a jury need not find
a defendant intended to kill everyone in the kill zone as a means
39
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
of killing the primary target . . . .” (Canizales, supra, 7 Cal.5th
at p. 607, fn. 5.) Rather than showing the concurrent intent
theory is itself unworkable, these cases demonstrate that, in
reviewing cases tried before Canizales, the Courts of Appeal
have properly applied its clarification and heeded its caution
that “there will be relatively few cases in which the theory will
be applicable and an instruction appropriate.” (Id. at p. 608.
Even among the four cited cases tried after Canizales that found
error, one involved “an earlier version of CALCRIM No. 600 that
was identical to that given in Canizales . . .” which failed to
“define a kill zone in terms of a primary target at all.”12 Another
case, like Rayford, misapplied the standard of review and
improperly substituted its evaluation of what inferences were
reasonable, thus usurping the province of the jury.13 The legal
landscape that has emerged after Canizales to date hardly
justifies jettisoning a concurrent intent instruction. The lesson
of experience is that the theory is a complex one that must be
employed with care and explained with precision.
More fundamentally, the concurrence does not
persuasively explain how failing to instruct the jury would solve
the problems the concurrence articulates. Although prior cases
have suggested the concurrent intent theory, when applicable,
does not require a jury instruction (see, e.g., Bland, supra, 28
Cal.4th at p. 331, fn. 6), Canizales cautioned “the potential for
the misapplication of the kill zone theory, as evidenced by prior
appellate cases, illustrates the importance of more clearly
12
People v. Anderson (Nov. 2, 2022, A162395) 2022 WL
16630809, at p. 8 [nonpub. opn].
13
See People v. Brown (May 26, 2023, B309004) 2023 WL
3672919, at p. 10 [nonpub. opn].
40
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
defining the kill zone theory in future cases.” (Canizales, supra,
7 Cal.5th at p. 606.) Yet the concurring opinion would leave this
clarification to the parties’ jury arguments. While the
arguments of counsel can be of assistance, it is the instructions
of the court that are binding on the jurors. Indeed, the standard
jury instruction informs them that “[y]ou must follow the law as
I explain it to you, even if you disagree with it. If you believe
that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.” (CALCRIM No.
200 [Duties of Judge and Jury]; see also Penal Code section
1126.)14 Further, as the present case demonstrates, even
attorneys sometimes misdescribe the concurrent intent theory.
Declining to provide correct instructions would expand, not
limit, the potential for misapplication of the concept. When
determining whether to instruct on concurrent intent at all, the
court serves an important gatekeeping function. Consideration
of whether the theory is properly presented by the facts of the
case, and thus support an instruction, should be considered at
the hearing during which instructions are requested by counsel
and settled by the court.
The concurrence correctly acknowledges that a theory of
liability where a defendant intended to indiscriminately kill
everyone in an area without targeting any particular person “is
distinct” from a concurrent intent theory. (Conc. opn., post, at
p. 21.) The foundation for the concurrent intent theory is that
14
That provision states: “In a trial for any offense, questions
of law are to be decided by the court, and questions of fact by the
jury. Although the jury has the power to find a general verdict,
which includes questions of law as well as of fact, they are
bound, nevertheless, to receive as law what is laid down as such
by the court.”
41
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
the use of a particularly lethal method of attack to kill a targeted
individual can support an inference that the attacker intended
to kill the primary target and concurrently intended to kill
everyone near the target to ensure the target’s death. The
distinction is important. A standard attempted murder
instruction might sufficiently explain the intent to kill
requirement under the indiscriminate killer scenario. Yet, as
Canizales explained, a jury, under certain circumstances, may
require more guidance as to how an intent to kill secondary
targets relates to a defendant’s intent to kill an identified,
primary target.
Defendant contends he also suffered prejudice with
respect to count 4, the attempted murder count involving
Mackay. He suggests the court’s attempted murder instruction
only explained the concurrent intent theory and “said nothing
about what the jury had to find to convict Mumin on Count 4
involving Mackay . . . .” Not so. The prosecutor’s sole theory of
liability as to Mackay was that defendant shot at the door
intending to kill the person opening it because defendant knew
that person had to be one of the officers who had been pursuing
him. Those straightforward inferences do not employ a
concurrent intent analysis, nor did the district attorney do so
when arguing in support of those charges. Not only did the
prosecutor limit her concurrent intent argument to the count
involving Johnson, the instruction itself only mentioned
Johnson when describing that concept. In light of the evidence,
the given instruction, and the jury argument, defendant could
not have been prejudiced as to the count involving Mackay. The
attempted murder conviction relating to the attempted murder
of Mackay in count 4 is affirmed.
42
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
For a contrary conclusion, defendant cites a note sent by
the jury which stated: “We all agreed that the defendant fired
at police officers intending to hit one or more of them and had
officer died, he’d be guilty of murder. [¶] 1) Is that sufficient to
determine intent to kill? [¶] 2) Is intent judged solely on
evidence presented or can we speculate about the defendant[’]s
state of mind?” The court responded to the first question: “It is
not my role to tell you whether the evidence is sufficient to prove
intent to kill. It is your role as jurors to determine whether the
evidence establishes intent to kill. [¶] See Cal Crim 600, 225.”
As to the second question, the court admonished jurors not to
“speculate or guess” and told them that they “may draw
reasonable inferences from the evidence presented.” The jury’s
question asked about an intent to kill but referenced neither
Mackay nor a concurrent intent theory. Defendant’s suggestion
the jury necessarily applied that theory to Mackay is unfounded.
In sum, we conclude the court’s erroneous concurrent
intent instruction was prejudicial as to the Johnson attempted
murder count.15 However, there was no concurrent intent
instruction given as to Mackay, and the other instructions on
the Mackay allegations were proper.16
15
We express no view regarding whether double jeopardy
principles bar a retrial for the attempted murder of Johnson.
(See Burks v. United States (1978) 437 U.S. 1, 10–18.
16
Amici curiae Innocence Rights of Orange County and the
Office of the State Public Defender (OSPD) both urge we should
abolish the concurrent intent theory. Neither party has
addressed the argument and it was not asserted in the trial
court. As this issue is not properly before us, we decline to
address it.
43
PEOPLE v. MUMIN
Opinion of the Court by Corrigan, J.
III. DISPOSITION
The judgment of the Court of Appeal affirming the
conviction on count 5 is reversed. In all other particulars the
judgment is affirmed. The matter is remanded to the Court of
Appeal with directions to remand the matter to the trial court
for further proceedings as may be necessary.
CORRIGAN, J.
We Concur:
JENKINS, Acting C. J.
KRUGER, J.
GROBAN, J.
ROBIE, J.*
__________________________
* Associate Justice of the Court of Appeal, Third
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
44
PEOPLE v. MUMIN
S271049
Concurring Opinion by Justice Liu
Today’s opinion addresses “the proper standard of review
when a defendant challenges a court’s decision to instruct on a
concurrent intent, or ‘kill zone,’ theory as applied to an
allegation of attempted murder.” (Maj. opn., ante, at p. 2.) I
agree that in this case, “although the Court of Appeal applied
the proper standard, it erroneously concluded that sufficient
evidence supported the giving of a concurrent intent instruction”
(ibid.) and that this error “was prejudicial as to [one] attempted
murder count” (id. at p. 44). I write separately to focus on a
threshold issue that would render consideration of the proper
standard of review unnecessary: the viability of continuing to
instruct juries on the “so-called kill zone theory.” (People v.
Canizales (2019) 7 Cal.5th 591, 596 (Canizales).
Under this theory, “a defendant may be convicted of the
attempted murder of an individual who was not the defendant’s
primary target.” (Canizales, supra, 7 Cal.5th at p. 596.) A jury
may convict “only when the jury finds that: (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,
1
PEOPLE v. MUMIN
Liu, J., concurring
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.” (Id. at
pp. 596–597.
In Canizales, we observed that, “[a]s past cases reveal,
there is a substantial potential that the kill zone theory may be
improperly applied.” (Canizales, supra, 7 Cal.5th at p. 597.) As
a result, “trial courts must be extremely careful in determining
when to permit the jury to rely upon the kill zone theory.” (Ibid.)
We anticipated “there will be relatively few cases in which the
theory will be applicable and an instruction appropriate.” (Id.
at p. 608.) We cautioned trial courts to “tread carefully when
the prosecution proposes to rely on such a theory” and ensure
that any instruction is sufficiently supported by the evidence.
(Ibid.) Noting that “the potential for misapplication . . . remains
troubling,” we provided a detailed clarification of the inquiry
and relevant evidentiary considerations. (Id. at p. 607.
As this case shows, there continues to be confusion as to
the proper application of this theory. Before and after
Canizales, the kill zone instruction has been given where it
should not have been. When we first recognized that “the fact
[a] person desires to kill a particular target does not preclude
finding that the person also, concurrently, intended to kill
others” (People v. Bland (2002) 28 Cal.4th 313, 329 (Bland)), we
did not set out to create a new doctrine for proving attempted
murder. To the contrary, we said concurrent intent is “not a
legal doctrine requiring special jury instructions. . . . Rather, it
is simply a reasonable inference the jury may draw in a given
case: a primary intent to kill a specific target does not rule out
a concurrent intent to kill others.” (Id. at p. 331, fn. 6.
Nevertheless, since Bland, special jury instructions have been
2
PEOPLE v. MUMIN
Liu, J., concurring
developed and the theory used in a range of cases resulting in
confusion, misapplication, and prejudicial errors, all while
adding little if any analytical value.
Today’s opinion again attempts to clarify the theory, but I
am doubtful it will lessen the need for error correction by
appellate courts. I suggest we yield to experience and abandon
the “kill zone theory” as a distinct theory of attempted murder.
Doing so would not eliminate the concept of concurrent intent;
it would simply clarify that concurrent intent to kill is an
inference the jury may draw from the totality of circumstances
in attempted murder cases with multiple victims, not a distinct
theory warranting a separate instruction.
I.
Although we have repeatedly used the term “kill zone” in
prior cases, it was not coined by us. We adopted it from an out-
of-state case, which discussed a hypothetical illustrating the
concept of concurrent intent. (Bland, supra, 28 Cal.4th at
pp. 329–330.) The “kill zone” shorthand obscures that
concurrent intent, first embraced in Bland, is a simple idea.
Bland was an attempted murder case with multiple
victims. The defendant and a fellow gang member approached
a car containing three individuals, identified the driver as a
rival gang member, then shot “into the vehicle” and “fired a
flurry of bullets” as it drove away. (Bland, supra, 28 Cal.4th at
pp. 318, 331.) The driver died, and the two passengers — both
of whom, “it appears, were not gang members” — were injured.
(Ibid.) The jury convicted Bland of attempted murder of the
passengers. (Id. at p. 318.) At trial, the jury was given a
“ ‘transferred intent’ ” instruction. (Id. at p. 319.) We examined
whether “ ‘a specific intent to kill’ ” could be transferred from the
3
PEOPLE v. MUMIN
Liu, J., concurring
intended victim (the driver) to the unintended victims (the
passengers). (Id. at p. 326; see id. at p. 317.) We held that it
could not: “[T]he doctrine of transferred intent does not apply
to attempted murder.” (Id. at p. 331.) Unlike murder,
attempted murder requires “the intent to kill”: the attempt
crime “sanctions what the person intended to do but did not
accomplish, not unintended and unaccomplished potential
consequences.” (Id. at p. 327.) As a result, “[s]omeone who
intends to kill only one person and attempts unsuccessfully to
do so, is guilty of the attempted murder of the intended victim,
but not of others.” (Id. at p. 328.) A defendant’s “mental state
must be examined as to each alleged attempted murder victim.”
(Ibid.; see id. at p. 331.
At the same time, we recognized that “a person who shoots
at a group of people” may still “be punished for the actions
toward everyone in the group even if that person primarily
targeted only one of them.” (Bland, supra, 28 Cal.4th at p. 329.
This is because “the fact the person desires to kill a particular
target does not preclude finding that the person also,
concurrently, intended to kill others.” (Ibid.) We quoted the
following explanation of concurrent intent from the Maryland
Court of Appeals: “ ‘The intent is concurrent . . . when 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. . . . [C]onsider a defendant who intends to
kill A and, in order to ensure A’s death, drives by a group
consisting of A, B, and C, and attacks the group with automatic
weapon fire or an explosive device devastating enough to kill
everyone in the group. The defendant has intentionally created
a “kill zone” to ensure the death of his primary victim, and the
4
PEOPLE v. MUMIN
Liu, J., concurring
trier of fact may reasonably infer from the method employed an
intent to kill others concurrent with the intent to kill the
primary victim. When the defendant escalated his mode of
attack from a single bullet aimed at A’s head to a hail of bullets
or an explosive device, the factfinder can infer that, whether or
not the defendant succeeded in killing A, the defendant
concurrently intended to kill everyone in A’s immediate vicinity
to ensure A’s death. The defendant’s intent need not be
transferred from A to B, because although the defendant’s goal
was to kill A, his intent to kill B was also direct; it was
concurrent with his intent to kill A.’ ” (Id. at pp. 329–330,
quoting Ford v. State (Md. 1993) 625 A.2d 984, 1000–1001.) We
observed that this understanding of intent was congruent with
California case law. (Bland, at p. 330, citing People v. Vang
(2001) 87 Cal.App.4th 554.
Bland did not change or add to ordinary principles of
attempted murder liability. Every attempted murder conviction
requires “ ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’ ” (Canizales, supra, 7 Cal.5th at p. 602.) And when “a
single act is charged as an attempt on the lives of two or more
persons, the intent to kill element must be examined
independently as to each alleged attempted murder victim.”
(Ibid.) Bland simply applied these principles to a specific
factual scenario involving multiple victims. It recognized that
in certain cases where the defendant intended to kill a
particular person, that intent “does not preclude” the jury from
finding that the defendant “concurrently” intended to kill
others. (Bland, supra, 28 Cal.4th at p. 329.) Instead, the jury
may reasonably infer the intent to kill others based on
circumstantial evidence of the crime — the “ ‘method
5
PEOPLE v. MUMIN
Liu, J., concurring
employed’ ” or the “ ‘mode of attack.’ ” (Id. at p. 330.) Such
inference is not novel or unusual: Because “direct evidence of
intent to kill is rare,” intent to kill “ordinarily . . . must be
inferred from the statements and actions of the defendant and
the circumstances surrounding the crime.” (Canizales, at
p. 602.
Concurrent intent does not establish an alternative route
to attempted murder liability. “ ‘[D]irect’ ” intent to kill must be
proven as to each victim, and the jury may infer such intent from
the totality of circumstances. (Bland, supra, 28 Cal.4th at
p. 330.) In this regard, concurrent intent is unlike transferred
intent, which employs a “legal fiction” to achieve a policy of
criminal liability. (People v. Scott (1996) 14 Cal.4th 544, 551.
And unlike transferred intent, concurrent intent is “not a legal
doctrine requiring special jury instructions.” (Bland, at p. 331,
fn. 6.) “Rather, it is simply a reasonable inference the jury may
draw in a given case: a primary intent to kill a specific target
does not rule out a concurrent intent to kill others.” (Ibid.
Although the “reasonable inference” of concurrent intent
has subsequently been referred to as the “kill zone theory,” cases
after Bland have not strayed from its basic understanding. We
have referenced the kill zone theory in three cases where it did
not apply to the facts at hand. In People v. Smith (2005) 37
Cal.4th 733 (Smith), the defendant fired a single bullet at a
woman and her child, both of whom were in his “direct line of
fire.” (Id. at p. 745.) We rejected application of the kill zone
theory, characterizing it as “simply recogniz[ing]” that under
certain circumstances “a rational jury could conclude beyond a
reasonable doubt that [a defendant] intended to kill not only his
targeted victim, but also all others he knew were in the zone of
fatal harm.” (Id. at p. 746.) We noted that it did not “preclude
6
PEOPLE v. MUMIN
Liu, J., concurring
a conclusion” that “two convictions of attempted murder” could
be supported “under the totality of the circumstances shown by
the evidence” at hand. (Id. at p. 745.) This discussion
reaffirmed that the kill zone theory is but one framework for
inferring an intent to kill. It is not the only possible framework
in multiple victim cases; it applies to a narrow set of
circumstances involving “lethal force designed and intended to
kill everyone in an area around the targeted victim . . . as the
means of accomplishing the killing of that victim.” (Id. at
p. 746.
In People v. Stone (2009) 46 Cal.4th 131 (Stone), we
reiterated Bland’s explanation “that if a person targets one
particular person, under some facts a jury could find the person
also, concurrently, intended to kill — and thus was guilty of the
attempted murder of — other, nontargeted, persons.” (Stone, at
p. 137.) In finding this theory inapplicable to a defendant who
fired a single shot into a group of 10 people, we again understood
the kill zone theory as one potential inference of intent to kill in
cases that involve a “primary target.” (Id. at p. 140; see id. at
p. 138, 140–141.) We distinguished this inference from the
inference behind “a person who intends to kill” but “has no
specific target in mind.” (Id. at p. 140.) Such “[a]n
indiscriminate would-be killer” can also satisfy the intent to kill
requirement, but this involves a different factual scenario and
inference. (Ibid.; see Canizales, supra, 7 Cal.5th at p. 608
[describing Stone as involving an “evidentiary bas[i]s, other
than the kill zone theory, on which a fact finder can infer an
intent to kill for purposes of attempted murder liability that
do[es] not depend on a showing that the defendant had a
primary target”].
7
PEOPLE v. MUMIN
Liu, J., concurring
Similarly, in People v. Perez (2010) 50 Cal.4th 222 (Perez),
we rejected the defendant’s contention that all “single-bullet
cases involving more than one potential attempted murder
victim must be analyzed under a kill zone rationale.” (Id. at
p. 232.) We found Bland “not controlling on the[] facts” because
its “theory of multiple attempted murder is necessarily defined
by the nature and scope of the attack,” and “firing a single shot
from a moving car at a distance of 60 feet at the group of eight
individuals” did not fit within this framework. (Perez, at p. 232.
Thus, in each of these cases describing and distinguishing the
kill zone theory, we retained the same basic understanding that
it “is simply a reasonable inference the jury may draw in a given
case.” (Bland, supra, 28 Cal.4th at p. 331, fn. 6.
We recently summarized these origins in Canizales and
again made clear that “the so-called kill zone theory” was an
application of ordinary principles of attempted murder liability
to specific facts. (Canizales, supra, 7 Cal.5th at p. 596.) We
stated that this theory “permits a jury to infer a defendant’s
intent to kill an alleged attempted murder victim from
circumstantial evidence (the circumstances of the defendant’s
attack on a primary target).” (Id. at p. 597.) Looking to
“circumstantial evidence to support a permissive inference
regarding a defendant’s intent . . . is not unusual. As we have
described on many occasions, intent to kill often must be
inferred from circumstantial evidence surrounding the crime.”
(Id. at p. 606.) For that reason, our articulation that the jury
must find that the “only reasonable inference is that the
defendant intended to create a zone of fatal harm” is based on
combining CALCRIM No. 225, the standard jury instruction on
circumstantial evidence, with the factual scenario that kill zone
theory addresses. (Canizales, at p. 597.
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Liu, J., concurring
Given this background, it is easy to see why a special
instruction is never necessary. (Bland, supra, 28 Cal.4th at
p. 331, fn. 6; accord, Stone, supra, 46 Cal.4th at p. 137; Smith,
supra, 37 Cal.4th at p. 746.) The kill zone theory recognizes one
way a jury might infer intent to kill in a specific factual scenario,
but it is not a new legal doctrine nor does it change the elements
of attempted murder. As one Court of Appeal recognized, “If the
evidence supports a reasonable inference that, as a means of
killing the primary target, the defendant specifically intended
to kill every single person in the area in which the primary
target was located, then the prosecutor can make that argument
and the jury can draw that inference without the aid of a kill
zone instruction — the ordinary instructions on attempted
murder will provide all of the necessary legal tools.” (People v.
McCloud (2012) 211 Cal.App.4th 788, 803 (McCloud).) Indeed,
the kill zone instruction is an anomaly; no other scenario-
specific inference of intent to kill appears to come with a
specialized instruction.
II.
In Canizales, we offered an extensive discussion of the kill
zone theory in an effort to “guard[] against the potential
misapplication of the theory” as “evidenced by prior appellate
cases.” (Canizales, supra, 7 Cal.5th at pp. 606, 607.) We
developed a two-part inquiry for when the theory “may properly
be applied.” (Id. at p. 607.) We provided examples of
“circumstances of the offense” the jury should consider — “the
type of weapon used, the number of shots fired (where a firearm
is used), the distance between the defendant and the alleged
victims, and the proximity of the alleged victims to the primary
target.” (Ibid.) We also clarified that evidence a defendant
“acted with only conscious disregard of the risk of serious injury
9
PEOPLE v. MUMIN
Liu, J., concurring
or death for those around a primary target does not satisfy the
kill zone theory” and that “evidence of a primary target is
required.” (Id. at pp. 607, 608.) We cautioned that the kill zone
theory should apply to “relatively few cases.” (Id. at p. 608.
Since we filed Canizales four years ago, 70 appellate cases
have cited it in evaluating kill zone instructions given by trial
courts. In nearly two-thirds of these cases (46 out of 70), the
Court of Appeal found error involving the instruction, with 37
cases finding reversible error. (See appen. A, post.) Most of
these cases involved kill zone instructions given by trial courts
before we decided Canizales. But even among the five cases
involving kill zone instructions given after Canizales, reviewing
courts have found error with the instruction in four of those five
cases, including the case now before us. (See appen. A, post.
Today’s opinion asserts that these case statistics
demonstrate that reviewing courts have “properly applied
[Canizales’s] clarification and heeded its caution,” and that
some instructions given after Canizales reflect errors addressed
in Canizales and today’s opinion. (Maj. opn., ante, at p. 41.
Apart from the merits of each decision, these cases show the
striking number of kill zone instructions given and the
frequency of error. That many of them involved instructions
given prior to Canizales is of little comfort. Canizales did not
represent a major departure from prior law. It did not change
the underlying concept of concurrent intent, and as today’s
opinion recognizes, it did not change the standard for
determining when to provide a kill zone instruction (maj. opn.,
ante, at p. 18). Before and after Canizales, our colleagues on the
Courts of Appeal have observed that giving a kill zone
instruction is not uncommon and often leads to error. (See In re
Sambrano (2022) 79 Cal.App.5th 724, 734 (Sambrano) [“[I]t is
10
PEOPLE v. MUMIN
Liu, J., concurring
not clear why it would ever be prudent to give such an
instruction. It appears easy to commit error by instructing the
jury on the kill zone theory, but it is literally impossible to err
by declining to do so.”], fn. omitted; People v. Medina (2019) 33
Cal.App.5th 146, 156 (Medina) [“A kill zone instruction is never
required, and as numerous appellate cases attest, giving such
an instruction can often lead to error.”].
Many cases have shown how the kill zone theory can be
mistakenly applied to facts that do not support it. Because the
theory “is used to support an inference that the defendant
concurrently intended to kill a nontargeted victim, . . . evidence
of a primary target is required.” (Canizales, supra, 7 Cal.5th at
p. 608.) Yet instructions are given in cases with no primary
target.
In Sambrano, for example, the defendant and two others
drove into rival gang territory; the defendant, who was driving,
stopped the car after “repeatedly driving past a group of people
gathered outside a house,” and his two passengers “began
shooting.” (Sambrano, supra, 79 Cal.App.5th at p. 728.) He was
convicted of six counts of attempted murder; two alleged victims
were struck by bullets outside the house, and four alleged
victims who were not hit were inside the house. (Id. at p. 729.
The trial court instructed the jury on the kill zone theory,
“stating that Sambrano could be found guilty of attempted
murder if he created a kill zone and intended to kill everyone
within that zone.” (Id. at p. 732, fn. omitted.) But there was “no
evidence that any person at the gathering in front of the . . .
house was the primary target of defendants’ attack.” (Id. at
p. 734.) There was “no evidence that Sambrano knew or
recognized anyone at the gathering or that the . . . house had
been defendants’ planned destination” and “no evidence that
11
PEOPLE v. MUMIN
Liu, J., concurring
any particular person at the gathering did or said anything that
might have led defendants to target a particular person when
the shooting commenced.” (Ibid.) Nor did the prosecutor’s
argument establish a particular target; instead, the prosecutor
suggested that the kill zone theory could apply “even if there is
no primary target.” (Id. at p. 735.) But without evidence of a
primary target, no kill zone instruction can be given. (See
Canizales, supra, 7 Cal.5th at p. 609 [noting the “correct”
observation that “ ‘[w]ithout a primary target, there cannot be
concurrent intent because there is no primary intent to kill as to
which the intent to kill others could be concurrent’ ”].) The
Sambrano court found the kill zone theory “categorically
inapplicable” on the facts and the error prejudicial, vacating the
convictions. (Sambrano, at p. 734; see id. at p. 736.
Other cases reflect the same error. (See, e.g., People v.
Thompkins (2020) 50 Cal.App.5th 365, 394, disapproved on
another ground in In re Lopez (2023) 14 Cal. 5th 562, 584
[reasoning that kill zone instruction should not have been given
where defendant fired 10 shots into a restaurant and the
“prosecution never attempted to identify any particular target
victim or victims”]; People v. Mariscal (2020) 47 Cal.App.5th
129, 139 [holding that “giving the [kill zone] instruction was
error” because there was no “intended victim” where defendant
“had no prior interaction” with the group of men sitting together
on bleachers and did not “know them or have any reason to
attack any one of them more than any of the others”]; Medina,
supra, 33 Cal.App.5th at pp. 149, 150, 156 [concluding that “it
was error” to provide kill zone instruction where “there was no
evidence the defendants here had a primary target” when they
drove through rival gang territory, crashed a car, “and started
shooting at bystanders”].
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PEOPLE v. MUMIN
Liu, J., concurring
Even when the kill zone theory appears to map onto the
facts of a case, the instruction might still be erroneously given
because the evidence is insufficient to support such an inference.
In Canizales, the defendant “attacked his target by firing five
bullets from a nine-millimeter handgun at a distance of either
100 or 160 feet away,” and “the attack occurred at a block party
on a wide city street,” not an “area or structure from which
victims would have limited means of escape.” (Canizales, supra,
7 Cal.5th at p. 611; see ibid. [noting that “bullets were ‘going
everywhere’ ” and “a target . . . immediately ran down a city
street after the first shot was fired”].) We held that the
instruction should not have been given because “the evidence
concerning the circumstances of the attack (including the type
and extent of force used . . . ) was not sufficient to support a
reasonable inference that defendants intended to create a zone
of fatal harm around a primary target.” (Id. at p. 610.
This type of error is also not uncommon. (See, e.g., In re
Lisea (2022) 73 Cal.App.5th 1041, 1056 [concluding that the kill
zone instruction was “erroneously worded” and had “virtually no
evidentiary support” because “only three to six shots were fired
from a smaller caliber weapon, from a vehicle moving away from
the crowd, into a public area and with no evidence of the shots
being fired from close range”]; People v. Booker (2020) 58
Cal.App.5th 482, 500 [concluding there was insufficient
evidence to support a kill zone instruction where defendant shot
at a car with two individuals inside because the defendant “fired
a total of three to seven shots directed at the front driver’s side,”
the shots “were directed at [the primary target] at close range,”
“there were no bullet holes . . . that would have reflected a spray
of bullets,” there was no “evidence any bullets reached . . . where
[the nontarget victim] was sitting,” and “there was no evidence
13
PEOPLE v. MUMIN
Liu, J., concurring
suggesting [the defendant] used a rapid-firing semiautomatic or
automatic weapon”], fn. omitted.
Misapplication of the theory to a case with insufficient
evidentiary support reveals a more basic problem. In some
instances, the kill zone theory may be used as an end run around
proving the requisite intent to kill in attempted murder cases
with multiple victims, particularly where the evidence of such
intent is weak.
In McCloud, for example, the defendants “fired 10 shots
from a semiautomatic handgun at a party at which over 400
people were present. Three bullets struck three victims, killing
two and injuring the third. The seven remaining bullets hit no
one.” (McCloud, supra, 211 Cal.App.4th at pp. 790–791.) One
of the defendants was convicted of second-degree murder for the
two deaths and 46 counts of attempted murder based on a kill
zone theory. (Id. at p. 791.) The record contained “no evidence
that [the defendants] intended to kill 46 people with 10 bullets”
nor any “evidence that it would have been possible for them to
kill 46 people with 10 bullets (given the type of ammunition and
firearm they used), or that they believed or had reason to believe
it was possible.” (Id. at pp. 799–800, fn. omitted.) As a result,
the Court of Appeal concluded the instruction was erroneously
given. It further found the error prejudicial and concluded, in a
sufficiency of evidence review, that “the evidence is sufficient to
support only eight attempted murder convictions, because 10
shots were fired but two of them killed victims . . . , for which
[the defendant] was separately convicted and punished.” (Id. at
p. 807.
Erroneous use of the kill zone theory in McCloud resulted
in 38 attempted murder convictions that were legally
14
PEOPLE v. MUMIN
Liu, J., concurring
insufficient, even “ ‘view[ing] the evidence in the light most
favorable to the prosecution, and presum[ing] in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ ” (McCloud, supra, 211 Cal.App.4th
at p. 805.) Unlike the other counts subject to reversal due to
instructional error, these counts could not “be retried on
remand.” (Ibid.) It is not clear how many other cases of
insufficiently supported kill zone instructions involve
insufficiently supported attempted murder convictions. But this
potential for excessive charges and invalid convictions is a
troubling consequence of the instruction.
Separate and apart from misapplication of the kill zone
theory to the facts of a case, the standard language for the
instruction poses its own concerns. The kill zone instruction is
part of the attempted murder instruction, CALCRIM No. 600.
For one thing, the moniker “kill zone” is itself problematic. It is
difficult to imagine how a juror tasked with evaluating the guilt
of someone accused of intending to kill “primary” and
“secondary” “targets” by creating a “kill zone” could view the
defendant through neutral eyes. (CALCRIM No. 600.) One
court has said there is “nothing argumentative in this
instruction” because it is analogous to terms in other
instructions such as “ ‘flight,’ ” “ ‘suppress[ion] of evidence,’ ”
and “ ‘consciousness of guilt.’ ” (People v. Campos (2007) 156
Cal.App.4th 1228, 1244.) But there is an important difference
between describing a defendant as having “fled [or tried to flee]”
(CALCRIM No. 372) or engaged in “[s]uppression” of evidence
(CALCRIM No. 371), which are objective facts, and instructing
the jury to determine whether “the defendant intended to create
a ‘kill zone’ and the scope of such a zone” (CALCRIM No. 600),
which is a legal construct. By asking whether the defendant
15
PEOPLE v. MUMIN
Liu, J., concurring
created a “kill zone,” an inflammatory phrase suggesting mass
violence, the latter is more susceptible to inviting the jury to see
the defendant as dangerous and biasing the jury toward guilt.
Further, the kill zone instruction runs the risk of
confusing the jury or presenting the theory in a legally
impermissible manner. This lengthy instruction, as excerpted
from CALCRIM No. 600, is reprinted in appendix B, post. It was
reworked after Canizales found it “should be revised to better
describe the contours and limits of the kill zone theory as we
have laid them out.” (Canizales, supra, 7 Cal.5th at p. 609.) It
now addresses Canizales’s concerns that the prior version failed
to define “ ‘kill zone’ ” beyond “ ‘particular zone of harm’ ” and
failed to “direct the jury to consider evidence regarding the
circumstances of defendants’ attack.” (Id. at p. 613.
But the instruction, which today’s opinion characterizes as
providing “more guidance” to a jury (maj. opn., ante, at p. 43),
still contains language that may result in confusion or error. For
example, the instruction presents the kill zone theory as an
alternative theory of attempted murder liability by informing
the jury that the prosecutor must prove either intent to kill the
nontarget victim or intent to kill everyone within the kill zone —
when in fact the latter (intent to kill everyone within the kill
zone) is how a jury finds the former (intent to kill the nontarget
victim). The instruction’s formulation appears to imply,
incorrectly, that an intent to kill everyone within the kill zone is
different from or negates the requirement to find an intent to
kill each alleged victim. (See Canizales, supra, 7 Cal.5th at
p. 597.) In addition, the instruction does not say the defendant
must “intend[] to kill everyone in the kill zone as a means of
killing the primary target” (id. at p. 607, fn. 5, italics added
until the very last sentence. Elsewhere, it refers to the
16
PEOPLE v. MUMIN
Liu, J., concurring
defendant “intend[ing] to kill everyone in the area around the
primary target” (CALCRIM No. 600) without saying that the
defendant does so to kill the primary target.
Even if CALCRIM No. 600 were again revised to address
these concerns, I question whether the game is worth the candle.
The previous revision led to a more convoluted and lengthy
instruction that still appears inaccurate. The fact that courts,
prosecutors, and jury instruction authors continue to have
trouble properly stating and applying the kill zone theory
suggests that a reasonable juror is unlikely to fare better. More
fundamentally, further revision of the jury instruction does not
address the concern that a special instruction unnecessarily
highlights the kill zone theory in jurors’ minds. Although the
bench notes to CALCRIM No. 600 recognize that an instruction
is “not required” and is “for the court to use at its discretion,”
the instruction is accompanied by a directive to “Give when kill
zone theory applies.” And because the instruction is long and
complex, far more so than the rest of the attempted murder
instruction, it may draw attention to the kill zone theory beyond
what is warranted to inform the jury of “simply a reasonable
inference [it] may draw in a given case.” (Bland, supra, 28
Cal.4th at p. 331, fn. 6.
Because the potential for error in employing the kill zone
instruction has proven to be substantial, and because the
instruction itself is unnecessary and confusing, I see no reason
to retain the instruction or embellish it with more clarifications
and admonitions.
Today’s opinion again emphasizes the importance of
“mak[ing] sure that [the jury] receives proper instruction on [the
kill zone] theory and only in the narrow and particularized
17
PEOPLE v. MUMIN
Liu, J., concurring
circumstances to which it may legitimately be applied” (maj.
opn., ante, at p. 26), echoing similar language in Canizales. (See
Canizales, supra, 7 Cal.5th at p. 608 [“We emphasize that going
forward trial courts must exercise caution when determining
whether to permit the jury to rely upon the kill zone theory.”].
It reasons that the kill zone theory “is a complex one that must
be employed with care and explained with precision,” and that
a lack of an instruction “would expand, not limit, the potential
for misapplication.” (Maj. opn., ante, at pp. 41, 42.
But we have said repeatedly that concurrent intent is “not
a legal doctrine requiring special jury instructions.” (Bland,
supra, 28 Cal.4th at p. 331, fn. 6; accord, Stone, supra, 46
Cal.4th at p. 137; Smith, supra, 37 Cal.4th at p. 746.) The
concept itself is simple. (Ante, at pp. 3–9.) And where counsel
misstates or misapplies it, the court can and should provide a
correction. (Maj. opn., ante, at p. 42 [“the court serves an
important gatekeeping function”].) At bottom, it is the existence
of a distinct kill zone instruction, not the complexity of the
underlying concept, that has proven to be problematic. The
availability of a kill zone instruction, so labeled and singled out
as a distinct theory of attempted murder, has led to overreliance,
and such overreliance cannot be solved with a more precise
instruction. Other than further exhortation that the instruction
should be given sparingly, today’s opinion offers little if any
guidance to reduce errors. I think it is time to heed the lessons
of experience. The more prudent course is to abandon a separate
kill zone instruction.
III.
In this case, defendant Ahmed Mumin was convicted of
two attempted murder charges involving alleged victims James
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PEOPLE v. MUMIN
Liu, J., concurring
Mackay and Luke Johnson. The jury was instructed with a
modified version of CALCRIM No. 600, which provided the
elements of attempted murder and a kill zone instruction. An
examination of the facts shows again how a kill zone instruction
can be misapplied.
Officers Mackay and Johnson were searching an
apartment complex where Mumin was present. (Maj. opn., ante,
at pp. 2–3.) From the outside, they “approached a building with
four adjacent doors leading to a community room.” (Id. at p. 3.
The doors were closed and Mackay “went to Door 1,” which was
the door “farthest to the right.” (Ibid.) Johnson “provided cover”
and was “positioned about 25 feet away from Door 1 and to the
left of it.” (Ibid.) He was “generally in line with Door 2,” the
adjacent door, “and back some distance from the plane of the
doorways.” (Ibid.) “Mackay stood by the right hinges of Door 1
and reached across to operate its handle.” (Ibid.) As he “opened
the door slightly,” Mumin, who had been hiding inside the
community room, “fired once through the opening and twice
through the closed Door 2. Neither officer was hit.” (Ibid.
As a threshold matter, it is questionable whether Mackay
can properly be considered a “primary target.” (Canizales,
supra, 7 Cal.5th at p. 608.) At trial, the prosecutor argued in
closing that Mumin “intended to kill the person opening the door
and intended to kill anyone near him attempting to apprehend
him.” The Attorney General presents a similar argument before
us, reasoning that Mumin “had a motive to kill any officer who
attempted to take him into custody, not just one officer in
particular.” These constructions suggest that the theory of
intent here was an intent to kill any approaching officers, which
happened to include Mackay, rather than an intent to target
Mackay as the officer opening the door and to kill others nearby
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PEOPLE v. MUMIN
Liu, J., concurring
to ensure his death. To the extent the prosecutor’s theory was
that Mumin “believe[d] he’s been cornered” and thus “form[ed]
the intent to kill the officers that are trying to apprehend him,”
it does not posit a primary target necessary for application of the
kill zone theory.
Even if Mackay could be considered a primary target, the
instruction was still erroneous. Under a kill zone theory, the
question for the jury is whether Mumin “intended to create a
zone of fatal harm” around Mackay “in which [he] intended to
kill everyone present to ensure [Mackay’s] death” and whether
Johnson “was located within that zone.” (Canizales, supra, 7
Cal.5th at p. 597.) Any finding that Mumin intended to kill
Mackay would not preclude a finding that he also intended to
kill Johnson; the intents would arise at the same time. But no
such reasonable inference can be supported by these
circumstances. In essence, Mumin fired three shots through
closed doors into an open area where two officers were located.
As today’s opinion notes, this is far from the type of “ ‘flurry’ ” or
“ ‘hail’ ” of bullets into confined spaces that have characterized
previous kill zone cases. (Maj. opn., ante, at p. 29.) Moreover,
because Johnson was “at least 25 feet away and off to the side,”
significantly greater force than three bullets would have been
“necessary to demonstrate an intent to create a lethal zone
encompassing” both Mackay and Johnson. (Id. at p. 30.) As a
result, the evidence was insufficient for a jury to reasonably
infer that Mumin “acted to create a kill zone around Mackay in
order to ensure his death.” (Id. at p. 31.
Furthermore, even if it were reasonable for a jury to infer
from Mumin’s three shots that he “intentionally created a zone
of fatal harm” around Mackay, a jury could not reasonably infer
that such a zone encompassed Johnson. (Canizales, supra, 7
20
PEOPLE v. MUMIN
Liu, J., concurring
Cal.5th at p. 610.) Johnson was standing 25 feet away from the
door Mackay opened. As the prosecutor recognized in closing
argument, Johnson specifically positioned himself outside of
what he considered to be the range of gunfire; he stood “slightly
to the left” to “avoid the fatal funnel.” Taken together, the facts
here suggest a scenario in which Mumin intended to kill Mackay
“and simply ran the risk that others might be killed,” which is
insufficient to sustain an attempted murder conviction as to
Johnson. (Maj. opn., ante, at p. 32.
As in other cases with insufficiently supported kill zone
instructions, I question whether the error here reveals that the
evidence was simply insufficient to support a reasonable
inference of Mumin’s intent to kill Johnson. As today’s opinion
notes, the prosecutor’s argument confused concurrent intent
with intent to “ ‘kill the person opening the door and . . . anyone
near him attempting to apprehend him.’ ” (Maj. opn., ante, at
p. 38; see id. at pp. 38–39.) While the latter “could be legally
sufficient” to support an attempted murder conviction, it is “not
concurrent intent.” (Id. at p. 38.) Similarly, the Attorney
General here argues that “Mumin intended to kill the multiple
officers he believed to be on the other side of those doors” — a
suggestion that “Mumin intended to indiscriminately kill
everyone in a particular area” (id. at p. 33). But even under this
rationale, which is distinct from a kill zone theory, “the intent
to kill element must be examined independently as to each
alleged murder victim.” (Canizales, supra, 7 Cal.5th at p. 602.
The circumstances that inform our conclusion as to the
erroneous kill zone instruction include Mumin’s firing “three
shots from a handgun,” the “openness of the space” he fired into,
the fact that “neither detective was hit,” and the distance
between Johnson and Mackay. (Maj. opn., ante, at pp. 28, 30;
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PEOPLE v. MUMIN
Liu, J., concurring
see also id. at p. 31.) These also appear to be reasons the
evidence in this case is legally insufficient to support a
reasonable inference that Mumin had an indiscriminate intent
to kill any approaching officers that encompassed or equated to
an intent to kill Johnson. The basic attempted murder
instruction would have crystallized this issue by asking the jury
to consider whether “the defendant took at least one direct but
ineffective step toward killing another person,” and “the
defendant intended to kill that person.” The totality of
circumstances would have informed the jury’s determination of
intent to kill.
Instead, the added kill zone instruction resulted in the
jury considering whether Mumin “either intended to kill Officer
Luke Johnson or any other officer outside the door attempting
to apprehend him” or “intended to kill everyone within the kill
zone.” These inquiries are relevant to Mumin’s intent to kill
Johnson, but the instruction as given tended to allow a
generalized intent (to kill officers) to supplant the individualized
intent (to kill Johnson) required for attempted murder. This
misdirection is suggested by a note from the jury asking whether
its agreement “that the defendant fired at police officers
intending to hit one or more of them and had officer died, he’d
be guilty of murder” was “sufficient to determine intent to kill.”
The ultimate question submitted to the jury appeared to be lost
in the lengthy and confusing verbiage of the kill zone
instruction.
Whether it is because the instruction was insufficiently
supported by evidence or because the evidence on intent to kill
Johnson was insufficient to support any attempted murder
conviction, the conclusion remains that “a concurrent intent
instruction should not have been given.” (Maj. opn., ante, at
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PEOPLE v. MUMIN
Liu, J., concurring
p. 27.) This case, like the other examples above, shows the
recurring misapplication of the kill zone theory and further
confirms why eliminating the instruction is the best path
forward. Doing so does not prevent a prosecutor from pursuing
a concurrent intent argument in an appropriate case; the jury
can always reach the inference underlying the theory based on
conventional attempted murder principles.
IV.
Finally, it should be noted that eliminating the kill zone
instruction does not affect a larger analytical quandary
implicated by this case: the circumstances under which
multiple attempted murder convictions may be supported.
Mumin argues that no kill zone instruction can be supported
here because he was unaware that “Johnson or any other officer
was anywhere outside the community room besides the person
opening [the door].” He reasons that he “necessarily could not
have created or intended to create a ‘zone of fatal harm’ . . .
around Mackay” with the intent to kill everyone in it if he
thought no one else was present. The Attorney General
counters that such knowledge “is not required where the
circumstances of the attack indicate a deliberate intent to take
the lives of others in a location where people may reasonably be
expected to be present.” He reasons that a “belief that multiple
officers were on the other side” is sufficient. Today’s opinion
does not address this contention, instead concluding that the kill
zone instruction was insufficiently supported based on other
factors. (Maj. opn., ante, at pp. 27–33.
I do not purport to resolve it either. I note only that a
defendant’s knowledge of the presence of others is related to a
more general difficulty of determining how many attempted
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PEOPLE v. MUMIN
Liu, J., concurring
murder convictions may be supported in any given multiple
victim case. Consider this example from Bland: “ ‘a defendant
who intends to kill A and, in order to ensure A’s death, drives by
a group consisting of A, B, and C, and attacks the group with
automatic weapon fire.’ ” (Bland, supra, 28 Cal.4th at p. 330.
In this hypothetical, the defendant could be liable for the
attempted murder of B and C under a kill zone theory. But if
the group consisted of even more individuals, how might the jury
determine for which ones the defendant is liable for attempted
murder? Is it everyone in the group, or only those the defendant
can see? Does it depend on the number of shots fired or the
number of injuries sustained?
These concerns are not unique to kill zone cases. Although
a defendant who shoots at the group with intent to kill but
without a primary target is not subject to a kill zone analysis,
the same questions arise. In Stone, a case not involving the kill
zone theory, we recognized that “difficulties can arise . . .
regarding how many attempted murder convictions are
permissible” and did not premise that difficulty on the
underlying theory of intent. (Stone, supra, 46 Cal.4th at p. 140;
see id. at p. 141 [declining to address the issue because the
defendant was charged with only one attempted murder count].
To be sure, some of the factors that might inform this
inquiry are circumstances that a kill zone instruction asks the
jury to consider: the type of weapon used, the number of shots
fired, the distance between the defendant and the victim, the
distance between the nontarget victim and the primary target.
(See Canizales, supra, 7 Cal.5th at p. 607.) But these are
examples of “circumstantial evidence to support a permissive
inference regarding a defendant’s intent,” and such evidence can
24
PEOPLE v. MUMIN
Liu, J., concurring
be examined in any attempted murder case, with no need for a
special instruction. (Id. at p. 606.
We examined evidence of this sort in Perez, where the
defendant was convicted of eight counts of attempted murder
after he “fired a single bullet at a distance of 60 feet, from a car
going 10 to 15 miles per hour, at a group of seven peace officers
and a civilian who were standing less than 15 feet apart from
one another in a dimly lit parking lot late on the night in
question. . . . The bullet hit one officer in the hand, nearly
severing his finger, but killed no one.” (Perez, supra, 50 Cal.4th
at p. 224.) We reversed seven of the eight convictions, reasoning
that “a rational trier of fact could find that . . . [the defendant]
acted with intent to kill someone in the group he fired upon,” but
not all of them. (Id. at p. 230.) We noted that “there is no
evidence that defendant knew or specifically targeted any
particular individual or individuals in the group of officers he
fired upon,” no “evidence that he specifically intended to kill two
or more persons with the single shot,” and “no evidence
defendant specifically intended to kill two or more persons in the
group but was only thwarted from firing off the required
additional shots by circumstances beyond his control.” (Id. at
pp. 230–231, fns. omitted.
In sum, questions related to how these factors inform
attempted murder convictions are not unique to kill zone cases.
(See Perez, supra, 50 Cal.4th at p. 232 [rejecting an argument
that a kill zone theory applied].) Elimination of the instruction
does not affect this inquiry one way or the other.
V.
Since our recognition of the kill zone theory, there has
been little if any upside to specially instructing juries on it. The
25
PEOPLE v. MUMIN
Liu, J., concurring
case law shows continuing confusion as to when and how the
theory applies, resulting in judicial inefficiencies and, with
troubling regularity, erroneous convictions. Eliminating the kill
zone instruction does not eliminate the underlying concept of
concurrent intent. Concurrent intent is simply a reasonable
inference the jury can make as to a defendant’s intent to kill in
a specific factual context involving multiple victims. (See Bland,
supra, 28 Cal.4th at pp. 329–330.) As with any other inference,
the prosecutor can argue for the inference based on
circumstantial evidence, and the jury can draw inferences as the
evidence warrants. There is no need for a separate and
convoluted instruction, especially one with such high potential
for error.
I would vacate the conviction for attempted murder of
Johnson and attached enhancements, and I would otherwise
affirm the judgment.
LIU, J.
I Concur:
EVANS, J.
26
PEOPLE v. MUMIN
Liu, J., concurring
APPENDIX A
Court of Appeal Decisions Evaluating Kill Zone Instructions
Since People v. Canizales (2019) 7 Cal.5th 591
An asterisk (*) denotes that the court found error
involving the giving of a kill zone instruction. A double asterisk
(**) denotes that the error resulted in the reversal or vacatur of
an attempted murder conviction. In some cases, the court
declined to reach a conclusion as to error and instead concluded
that any error was harmless. These cases have not been denoted
as cases involving error. (See, e.g., People v. Stelly (Aug. 16,
2021, A157142) [nonpub. opn.] 2021 WL 3615764; People v. Ruiz
(Nov. 25, 2019, F076231) [nonpub. opn.] 2019 WL 6271799.
A dagger (†) denotes that the kill zone instruction was
given after Canizales.
This list does not include cases where the court evaluated
whether there was sufficient evidence to support an attempted
murder conviction under a kill zone theory, as opposed to
evaluating whether there was error involving the giving of a kill
zone instruction. (See, e.g., People v. Lazo (Nov. 2, 2022,
B304615) [nonpub opn.] 2022 WL 16630910; People v. George
(Jan. 11, 2021, E072299) [nonpub opn.] 2021 WL 82315.
1.
People v. Mason (Aug. 15, 2019, B283892) (nonpub. opn.
2019 WL 3822003
2.
People v. Salvador Espinoza (Aug. 15, 2019, B288107
(nonpub. opn.) 2019 WL 3821795
3.
People v. Dorantes (Sept. 3, 2019, B289777) (nonpub. opn.
2019 WL 4164803**
1
PEOPLE v. MUMIN
Liu, J., concurring
4.
People v. Guardado (Oct. 2, 2019, B284144) (nonpub. opn.
2019 WL 4855111**
5.
People v. Galstyan (Nov. 4, 2019, B279947) (nonpub. opn.
2019 WL 5689840
6.
People v. Goins (Nov. 12, 2019, B281831) (nonpub. opn.
2019 WL 5884387
7.
People v. Gray (Nov. 21, 2019, B282321) (nonpub. opn.
2019 WL 6206257
8.
People v. Harris (Nov. 21, 2019, D075379) (nonpub. opn.
2019 WL 6208343
9.
People v. Singh (Nov. 22, 2019, E067985) (nonpub. opn.
2019 WL 6242187**
10. People v. Garcia (Nov. 25, 2019, B259708) (nonpub. opn.
2019 WL 6269807
11. People v. Ruiz (Nov. 25, 2019, F076231) (nonpub. opn.
2019 WL 6271799
12. People v. Anderson (Dec. 12, 2019, B251527) (nonpub.
opn.) 2019 WL 6768776*
13. People v. Warner (Dec. 16, 2019, C077711), review denied
and opinion ordered nonpublished March 25, 2020,
S260341
14. People v. Garcia (Dec. 18, 2019, C066714) (nonpub. opn.
2019 WL 6888452**
15. People v. Rios (Dec. 20, 2019, F074350) (nonpub. opn.
2019 WL 6975115
16. People v. Esquivel (Dec. 23, 2019, B269545) (nonpub. opn.
2019 WL 7046538**
17. In re Rayford (2020) 50 Cal.App.5th 754**
2
PEOPLE v. MUMIN
Liu, J., concurring
18. People v. Booker (2020) 58 Cal.App.5th 482**
19. People v. Cardenas (2020) 53 Cal.App.5th 102**
20. People v. Mariscal (2020) 47 Cal.App.5th 129*
21. People v. Thompkins (2020) 50 Cal.App.5th 365**
22. People v. Escobar (Jan. 10, 2020, B259309) (nonpub. opn.
2020 WL 112664*
23. People v. Kennedy (Jan. 15, 2020, B264661) (nonpub. opn.
2020 WL 218756*
24. People v. Torres (Jan. 17, 2020, C087086) (nonpub. opn.
2020 WL 255068
25. People v. Ratcliffe (Feb. 11, 2020, E063690) (nonpub. opn.
2020 WL 634410*
26. People v. Casique (Feb. 21, 2020, B284945) (nonpub. opn.
2020 WL 858137**
27. People v. Granados (Feb. 25, 2020, B257627) (nonpub.
opn.) 2020 WL 896844
28. People v. Stone (Mar. 2, 2020, B293532) (nonpub. opn.
2020 WL 994144
29. People v. Gomez (Mar. 4, 2020, B293727) (nonpub. opn.
2020 WL 1041611**
30. People v. King (Mar. 18, 2020, E070384) (nonpub. opn.
2020 WL 1284895*
31. People v. Melson (April 1, 2020, B292679) (nonpub. opn.
2020 WL 1545707**
32. People v. Mays (April 3, 2020, B291995) (nonpub. opn.
2020 WL 1648660**
3
PEOPLE v. MUMIN
Liu, J., concurring
33. People v. Miranda (April 8, 2020, B266817) (nonpub. opn.
2020 WL 1698391**
34. People v. Gonzalez (April 10, 2020, B296206) (nonpub.
opn.) 2020 WL 1815073**
35. People v. Williams (April 27, 2020, B259888) (nonpub.
opn.) 2020 WL 1983064
36. People v. Alvarado (May 1, 2020, H045500) (nonpub. opn.
2020 WL 2092478**
37. People v. Sanders (May 1, 2020, B295960) (nonpub. opn.
2020 WL 2110306**
38. People v. Vivero (June 8, 2020, C086268) (nonpub. opn.
2020 WL 3046066
39. People v. Riberal (Sept. 29, 2020, C077018) (nonpub. opn.
2020 WL 5793209
40. People v. Henson (Oct. 4, 2020, C084770) (nonpub. opn.
2020 WL 6054127**
41. People v. Quiroz (Oct. 16, 2020, E069820) (nonpub. opn.
2020 WL 6110984**
42. People v. Dominguez (2021) 66 Cal.App.5th 163**
43. People v. Morales (2021) 67 Cal.App.5th 326
44. People v. Mumin (2021) 68 Cal.App.5th 36 — Although the
Court of Appeal found no error in the giving of a kill zone
instruction, today’s decision reverses that finding and
vacates an attempted murder conviction.**†
45. In re Bruno-Martinez (Feb. 18, 2021, C091819) (nonpub.
opn.) 2021 WL 631981*
46. People v. Reyes (April 5, 2021, B301357) (nonpub. opn.
2021 WL 1248216
4
PEOPLE v. MUMIN
Liu, J., concurring
47. In re Evans (April 30, 2021, B281093) (nonpub. opn.) 2021
WL 1711631**
48. People v. Montanez (May 3, 2021, C083092) (nonpub. opn.
2021 WL 1730252
49. People v. Gonzalez (May 12, 2021, C089973) (nonpub. opn.
2021 WL 1956474**
50. People v. Brown (May 21, 2021, C089252) (nonpub. opn.
2021 WL 2024911**
51. People v. Josue Sanchez (May 28, 2021, B302549) (nonpub.
opn.) 2021 WL 2176486
52. People v. Oliver (July 1, 2021, B307225) (nonpub. opn.
2021 WL 2701376†
53. People v. Morris (Aug. 11, 2021, D076312) (nonpub. opn.
2021 WL 3523405**
54. People v. Stelly (Aug. 16, 2021, A157142) (nonpub. opn.
2021 WL 3615764
55. In re Sirypangno (Oct. 4, 2021, D078705) (nonpub. opn.
2021 WL 4785924**
56. People v. Sanchez-Gomez (Oct. 15, 2021, A156198
(nonpub. opn.) 2021 WL 4807976**
57. People v. Aguilar (Dec. 9, 2021, F077784) (nonpub. opn.
2021 WL 5832887**
58. In re Lisea (2022) 73 Cal.App.5th 1041**
59. In re Sambrano (2022) 79 Cal.App.5th 724**
60. People v. Lee (2022) 81 Cal.App.5th 232*
61. People v. Perez (2022) 78 Cal.App.5th 192**
5
PEOPLE v. MUMIN
Liu, J., concurring
62. People v. Brown (Feb. 2, 2022, G060395) (nonpub. opn.
2022 WL 522503
63. People v. Fields (April 25, 2022, C068047) (nonpub. opn.
2022 WL 1210474**
64. People v. Cerda (July 5, 2022, B232572) (nonpub. opn.
2022 WL 2436942
65. In re Milam (Aug. 4, 2022, B312401) (nonpub. opn.) 2022
WL 3097295**
66. People v. Anderson (Nov. 2, 2022, A162395) (nonpub. opn.
2022 WL 16630809**†
67. In re Hurtado (Feb. 9, 2023, B320947) (nonpub. opn.) 2023
WL 1852252**
68. People v. Avalos (Mar. 24, 2023, F082849) (nonpub. opn.
2023 WL 2620905*†
69. People v. Brown (May 26, 2023, B309004) (nonpub. opn.
2023 WL 3672919**†
70. People v. Trujillo (June 7, 2023, F081571) (nonpub. opn.
2023 WL 3857586**
6
PEOPLE v. MUMIN
Liu, J., concurring
APPENDIX B
Standard Kill Zone Instruction,
Excerpted from CALCRIM No. 600
“<Give when kill zone theory applies>
“[A person may intend to kill a primary target and also [a]
secondary target[s] within a zone of fatal harm or ‘kill zone.’ A
‘kill zone’ is an area in which the defendant used lethal force
that was designed and intended to kill everyone in the area
around the primary target.
“In order to convict the defendant of the attempted murder
of _____ <insert name or description of victim charged in
attempted murder count[s] on concurrent-intent theory> , the
People must prove that the defendant not only intended to kill
_____ <insert name of primary target alleged> but also either
intended to kill _____ <insert name or description of victim
charged in attempted murder count[s] on concurrent-intent
theory> , or intended to kill everyone within the kill zone.
“In determining whether the defendant intended to kill
_____ <insert name or description of victim charged in attempted
murder count[s] on concurrent-intent theory> , the People must
prove that (1) the only reasonable conclusion from the
defendant’s use of lethal force, is that the defendant intended to
create a kill zone; and (2) _____ <insert name or description of
victim charged in attempted murder count[s] on concurrent-
intent theory> was located within the kill zone.
“In determining whether the defendant intended to create
a ‘kill zone’ and the scope of such a zone, you should consider all
of the circumstances including, but not limited to, the following:
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PEOPLE v. MUMIN
Liu, J., concurring
“[• The type of weapon used(;/.)]
“[• The number of shots fired(;/.)]
“[• The distance between the defendant and _____ <insert
name or description of victim charged in attempted murder
count[s] on concurrent-intent theory>(;/.)]
“[• The distance between _____ <insert name or
description of victim charged in attempted murder count[s] on
concurrent-intent theory> and the primary target.]
“If you have a reasonable doubt whether the defendant intended
to kill _____ <insert name or description of victim charged in
attempted murder count[s] on concurrent-intent theory> or
intended to kill _____ <insert name or description of primary
target alleged> by killing everyone in the kill zone, then you
must find the defendant not guilty of the attempted murder of
_____ <insert name or description of victim charged in attempted
murder count[s] on concurrent-intent theory>.]” (CALCRIM No.
600.
2
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Mumin
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 68 Cal.App.5th 36
Review Granted (unpublished)
Rehearing Granted
Opinion No. S271049
Date Filed: August 17, 2023
Court: Superior
County: San Diego
Judge: Kenneth K. So
Counsel:
Raymond M. DiGuiseppe, under appointment by the Supreme Court,
for Defendant and Appellant.
Annee Della Donna for Innocence Rights of Orange County as Amicus
Curiae on behalf of Defendant and Appellant.
Mary K. McComb, State Public Defender, and Elizabeth H. Eng,
Deputy State Public Defender, for the Office of the State Public
Defender as Amicus Curiae on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney
General, Lance E. Winters, Chief Assistant Attorney General, Julie L.
Garland and Charles C. Ragland, Assistant Attorneys General, Steve
Oetting, Arlene A. Sevidal, Collette Cavalier and Minh U. Le, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Raymond M. DiGuiseppe
Attorney at Law
P.O. Box 10790
Southport, NC 28461
(910) 713-8804
Elizabeth H. Eng
Deputy State Public Defender
770 L Street, Suite 1000
Sacramento, CA 95814
(916) 322-2676
Minh U. Le
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9055
Opinion Information
| Date: | Docket Number: |
| Thu, 08/17/2023 | S271049 |
