IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
NICHOLAS SCOTT STONE,
Defendant and Appellant.
Super. Ct. No. 05CM4433
Can a person who shoots into a group of people, intending to kill one of the
group, but not knowing or caring which one, be convicted of attempted murder?
Yes. The mental state required for attempted murder is the intent to kill a human
being, not a particular human being.
I. FACTS AND PROCEDURAL HISTORY
We take our facts primarily from the Court of Appeal’s opinion.
Around 8:30 p.m. on the evening of October 21, 2005, Officer Mark
Pescatore was on duty with two other police officers at a parking lot carnival in
Lemoore. Officer Pescatore observed a group of 10 to 25 youths blocking the
pathways and moving about the carnival area. About half of those in the group
were wearing red, a color associated with Norteno street gangs. One of the
officers believed the group was “looking for trouble.” The group included 16-
year-old Joel F. as well as “Jamal,” a Norteno gang member. Sixteen-year-old
Camilo M., a member of a Sureno street gang, and his friend Abel Rincon were
also at the carnival.
Several members of the Norteno gang called Camilo “scrapa,” a derogatory
term for a Sureno, and challenged him and Rincon to fight. Camilo and Rincon
decided not to fight and left the carnival. A group of Nortenos followed them, and
Jamal kicked Rincon’s truck as Rincon and Camilo drove away. Camilo and
Rincon returned home and told several people, including defendant, what had
happened at the carnival. A short time later, Camilo and Rincon and others,
including defendant, returned to the carnival in Rincon’s truck. Rincon drove.
Defendant sat on the passenger side of the truck.
Meanwhile, at the carnival, the police directed the Norteno group to leave,
and about 10 of them went to a grassy area in the parking lot. When Rincon and
his companions returned to the carnival, Rincon drove his truck past the group of
Nortenos twice. On the third pass, he stopped the truck 10 to 15 feet from the
group and held up three fingers, denoting a gang sign. Defendant rolled down his
passenger window, pulled out a gun, and fired it. The truck then left the scene.
Officer Pescatore, who was about 60 feet away, observed “an arm come out of the
passenger window, and then saw a muzzle flash and heard a gunshot.” He
described the arm as “pointing straight out the window” at a group of individuals
on the grassy island in the parking lot, about four to five feet away.
Joel F. testified that the gun in defendant’s hand was “pointed up” slightly
and extended toward the group when he fired. Joel did not think defendant had
pointed the gun at anyone in particular, but he said that when the gun was fired, he
ducked because he was worried about being shot. The group “scattered” and
“[e]veryone kind of ducked.” Joel testified that the gun had not been pointed
“directly” at him, but it was “near” him. Joel also expressed the belief that the gun
was fired “[j]ust to scare us. I don’t really think he was trying to shoot anybody.”
As relevant here, a jury found defendant guilty of one count of attempted
premeditated murder (Pen. Code, §§ 187, 664) and found true personal use of a
firearm and criminal street gang enhancement allegations (Pen. Code, §§ 186.22,
subd. (b), 12022.53, subd. (b)). The information had alleged that Joel F. was the
attempted murder victim. The court sentenced defendant to state prison, and he
The Court of Appeal reversed the attempted murder conviction and related
enhancement findings. It concluded that the trial court prejudicially misinstructed
the jury on the intent requirement of attempted murder. Additionally, it found
insufficient evidence to support the attempted murder conviction and, citing
People v. Seel (2004) 34 Cal.4th 535, 544, it prohibited retrial on that count. It
agreed with defendant that the evidence was insufficient “because it establishes, at
most, that when he fired his single shot at the group of Nortenos, [defendant]
intended to kill someone but not specifically Joel F. and not everyone in the
group.” It found “not a scintilla of evidence to distinguish Joel F. from any
member of the group as a desired victim of [defendant’s] fire.”
We granted the Kings County District Attorney’s petition for review.
Defendant was charged with and convicted of a single count of attempted
murder for firing a single shot at a group of 10 people. “Attempted murder
requires the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.” (People v. Superior Court (Decker)
(2007) 41 Cal.4th 1, 7.) The main issue before us on review concerns the nature
of the intent-to-kill requirement. Specifically, the question is whether the intent
must be to kill a particular person, or whether a generalized intent to kill someone,
but not necessarily a specific target, is sufficient.
Preliminary, we must explain how this question arises in this case. The
information specifically alleged that Joel F. was the attempted murder victim. The
trial court instructed the jury on a particular theory of attempted murder, discussed
in People v. Bland (2002) 28 Cal.4th 313 (Bland). Because Bland is central to the
question here, we discuss it in detail.
In Bland, supra, 28 Cal.4th 313, the defendant and a cohort fired multiple
shots at three persons in a car, killing the driver and injuring, but not killing, the
two passengers. The defendant was convicted of murdering the driver and of
attempting to murder the two passengers. The evidence supported a jury finding
that the defendants intended to kill the driver, i.e., the one actually killed, but did
not specifically target the two who survived. (Id. at p. 319.) We explained that a
person who intends to kill is guilty of the murder of everyone actually killed,
whether or not the person intended to kill each one. “[A] person maliciously
intending to kill is guilty of the murder of all persons actually killed.” (Id. at pp.
323-324.) But we also held that situation is different concerning attempted
murder. “The crime of attempt sanctions what the person intended to do but did
not accomplish, not unintended and unaccomplished potential consequences.” (Id.
at p. 327.) We summarized the rule that applies when an intended target is killed
and unintended targets are injured but not killed. “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 . . . 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.” (Id. at p. 328.)
We also explained, however, 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. Citing a Maryland case (Ford v. State (Md. 1993) 625 A.2d 984), we
explained that “the fact the person desires to kill a particular target does not
preclude finding that the person also, concurrently, intended to kill others within
what [the Ford court] termed the ‘kill zone.’ ” (Bland, supra, 28 Cal.4th at p.
329.) For example, if a person placed a bomb on a commercial airplane intending
to kill a primary target, but also ensuring the death of all the passengers, the
person could be convicted of the attempted murder of all the passengers, and not
only the primary target. (Bland, supra, at pp. 329-330.) Likewise, in Bland,
“[e]ven if the jury found that defendant primarily wanted to kill [a 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.” (Id. at pp. 330-331.)
We also explained in Bland that this “concurrent intent” or “kill zone”
theory “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.” (Bland,
supra, 28 Cal.4th at p. 331, fn. 6.) Nevertheless, current pattern jury instructions
discuss the kill zone theory. (CALJIC No. 8.66.1 (2004 rev.); 1 CALCRIM No.
CALJIC No. 8.66.1 (2004 rev.) provides: “A person who primarily intends
to kill one person, may also concurrently intend to kill other persons within a
particular zone of risk. [This zone of risk is 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 it is reasonable to infer the perpetrator intended to kill the
primary victim by killing everyone in that victim’s vicinity. [¶] Whether a
600 (2008).)2 The Bench Notes to CALCRIM No. 600 explain that Bland stated
that a special instruction on the point is not required, and that the kill zone
“language is provided for the court to use at its discretion.”
In this case, the trial court gave a modified version of the CALCRIM kill
zone instruction: “A person may intend to kill a specific victim or victims and at
the same time intend to kill anyone in a particular zone of harm or . . . ‘kill
zone’ . . . . [¶] In order to convict the defendant of the attempted murder of [Joel
F.], the People must prove either that the defendant intended to kill [Joel F.], or
that he not only intended to kill another human being, but also that he intended to
kill anyone within the ‘kill zone,’ and that [Joel F.] was in the zone of harm or
‘kill zone’ at the time of the shot. [¶] If you have a reasonable doubt whether the
defendant intended to kill [Joel F.] or intended to kill another by harming everyone
in the ‘kill zone,’ or whether [Joel F.] was in the ‘kill zone’ then you must find the
defendant not guilty of the attempted murder of [Joel F.].”
The Court of Appeal found that the court erred in giving this instruction.3
We agree. The kill zone theory simply does not fit the charge or facts of this case.
perpetrator actually intended to kill the victim, either as a primary target or as
someone within a [‘kill zone’][zone of risk] is an issue to be decided by you.”
CALCRIM No. 600 (2008) provides in relevant part: “A person may
intend to kill a specific victim or victims and at the same time intend to kill anyone
in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the
attempted murder of ___ <insert name 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 of victim charged in attempted murder
count[s] on concurrent-intent theory>, or intended to kill anyone within the kill
zone. If you have a reasonable doubt whether the defendant intended to kill ___
<insert name of victim charged in attempted murder count[s] on concurrent-intent
theory> or intended to kill ___ <insert name of primary target alleged> by
harming everyone in the kill zone, then you must find the defendant not guilty of
the attempted murder of ___ <insert name of victim charged in attempted murder
count[s] on concurrent-intent theory>.”
That theory addresses the question of whether a defendant charged with the
murder or attempted murder of an intended target can also be convicted of
attempting to murder other, nontargeted, persons. Here, defendant was charged
with but a single count of attempted murder. He was not charged with 10
attempted murders, one for each member of the group at which he shot. As the
Court of Appeal explained, “There was no evidence here that [defendant] used a
means to kill the named victim, Joel F., that inevitably would result in the death of
other victims within a zone of danger. [Defendant] was charged only with the
attempted murder of Joel F. and not with the attempted murder of others in the
group on which [defendant] fired his gun.”
The error is not necessarily prejudicial by itself. But the Court of Appeal
found the error prejudicial in light of the prosecutor’s argument to the jury.
Although the information alleged that Joel F. was the attempted murder victim, in
his argument to the jury, the district attorney agreed he had not proven that
defendant intended specifically to kill Joel F. rather than someone in the group of
10 persons. He argued, however, that an intent to kill someone, even if not
specifically Joel F., was sufficient for the jury to find defendant guilty of the
attempted murder charge.
The Court of Appeal also noted two ambiguities in this portion of
CALCRIM No. 600. First, as did the Court of Appeal in People v. Campos (2007)
156 Cal.App.4th 1228, 1241, 1243, it noted that the instruction refers to the intent
to kill “anyone” within the kill zone rather than “everyone.” In context, a jury
hearing about the intent to kill anyone within the kill zone would probably
interpret it as meaning the intent to kill any person who happens to be in the kill
zone, i.e., everyone in the kill zone. But any possible ambiguity can easily be
eliminated by changing the word “anyone” to “everyone.”
Second, the Court of Appeal noted that “the final sentence refers to an
intent to harm everyone in the kill zone, rather than to kill everyone in the zone.”
Because the intent required for attempted murder is to kill rather than merely
harm, it would be better for the instruction to use the word “kill” consistently
rather than the word “harm.”
The Court of Appeal found that the instructions, combined with the
prosecutor’s argument, might have caused the jury to believe it could convict
defendant of attempted murder if it found an intent to kill someone, even if not
specifically Joel F. It concluded that this was an “erroneous theory of guilt”
requiring reversal. Moreover, it also found insufficient evidence to support the
attempted murder conviction. Both of the Court of Appeal’s conclusions — (1)
that error in instructing on the kill zone theory, combined with the prosecutor’s
argument, was prejudicial; and (2) that insufficient evidence supports the
attempted murder conviction — may have been based, at least in part, on the
understanding that attempted murder requires the intent to kill a particular person.
This is the primary question presented in the district attorney’s petition for review.
We now consider that question.
In People v. Scott (1996) 14 Cal.4th 544, the defendant shot and killed an
unintended target and wounded but did not kill the intended target. We affirmed
convictions of murder of the unintended target and attempted murder of the
intended target, holding that the intent to kill the intended target transferred to the
unintended target and could also support a conviction of attempting to kill the
intended target. Justice Mosk authored a concurring opinion criticizing use of the
transferred intent doctrine. He argued that the same result applies simply by
holding, as he would have, that “there is no requirement of an unlawful intent to
kill an intended victim. The law speaks in terms of an unlawful intent to kill a
person, not the person intended to be killed.” (Id. at p. 556 (conc. opn. of Mosk,
J.).) In Bland, we endorsed Justice Mosk’s view that, for murder, “the intent to
kill need not be directed at a specific person . . . .” (Bland, supra, 28 Cal.4th at p.
323.) “The social harm of murder is the ‘killing of a human being by another
human being.’ The requisite intent, therefore, is the intent to kill a, not a specific,
human being.” (Dressler, Understanding Criminal Law (4th ed. 2006) § 10.04[b],
p. 133; see also People v. Scott, supra, at pp. 554-556 (conc. opn. of Mosk, J.)
[citing an earlier edition of this treatise].)
In Bland, however, we explained that in some respects, the mental state
required for attempted murder differs from that required for murder. Attempted
murder requires express malice, i.e., intent to kill. Implied malice — a conscious
disregard for life — suffices for murder but not attempted murder. In addition,
transferred intent does not apply to attempted murder. (Bland, supra, 28 Cal.4th at
pp. 327-328.) The Court of Appeal here may have interpreted our discussion in
Bland as requiring, for attempted murder, a specific primary target. The Court of
Appeal in People v. Anzalone (2006) 141 Cal.App.4th 380, which reversed three
of four convictions of attempted murder, seemed to interpret Bland this way. (See
id. at pp. 392-393.) But the question never arose in Bland. In Bland, there was a
primary target. We were considering the circumstances under which a person
could be convicted of attempting to murder someone other than the primary target.
We never considered, and accordingly expressed no view regarding, whether a
person can be convicted of attempted murder when there is no primary target at
all. Cases are not authority for matters not considered. (People v. Alvarez (2002)
27 Cal.4th 1161, 1176.)
Now that we consider the question, we conclude that a person who intends
to kill can be guilty of attempted murder even if the person has no specific target
in mind. An indiscriminate would-be killer is just as culpable as one who targets a
specific person. One of Bland’s kill zone examples involved a bomber who places
a bomb on a commercial airplane intending to kill a primary target but ensuring
the death of all passengers. We explained that the bomber could be convicted of
the attempted murder of all the passengers. (Bland, supra, 28 Cal.4th at pp. 329-
330.) But a terrorist who simply wants to kill as many people as possible, and
does not know or care who the victims will be, can be just as guilty of attempted
Bland cited with approval People v. Vang (2001) 87 Cal.App.4th 554,
which affirmed convictions of 11 counts of attempted murder for spraying bullets
at two occupied houses — one count for each person in the houses. (See Bland,
supra, 28 Cal.4th at p. 330.) Vang found the evidence supported the conclusion
that the “defendants harbored a specific intent to kill every living being within the
residences they shot up.” (People v. Vang, supra, at p. 564.) We described Vang
as essentially a kill zone case. (Bland, supra, at p. 330.) Although the defendants
in Vang apparently had a primary target at each house, nothing in either Vang or
Bland suggests that if they had shot at the houses simply to kill everyone who
happened to be present, without any primary target, then no conviction whatever
for attempted murder would be possible. Although a primary target often exists
and can be identified, one is not required.
We explained in Bland that difficulties can arise when deciding whether a
person can be convicted of the attempted murder of an untargeted person in
addition to the murder or attempted murder of the target, and regarding how many
attempted murder convictions are permissible. (Bland, supra, 28 Cal.4th at pp.
328-329; see also People v. Smith (2005) 37 Cal.4th 733 [considering whether the
defendant who fired one shot could be convicted of attempting to murder a baby in
the line of fire in addition to the attempted murder of the mother, the primary
target].) After all, “[t]he world contains many people a murderous assailant does
not intend to kill.” (Bland, supra, at p. 329.) But this case does not involve such
difficulties. Defendant was not charged with the attempted murder of all the
world, or even everyone in the group at which he fired, but only of one attempted
murder. Whatever difficulties exist in deciding how many attempted murders a
would be indiscriminate killer has committed do not exist here.
One difference regarding intent to kill does exist between murder and
attempted murder. A person who intends to kill can be guilty of the murder of
each person actually killed, even if the person intended to kill only one. (See
Bland, supra, 28 Cal.4th at pp. 323-324.) The same is not necessarily true
regarding attempted murder. Rather, “guilt of attempted murder must be judged
separately as to each alleged victim.” (Id. at p. 331.) But this is true whether the
alleged victim was particularly targeted or randomly chosen. As the district
attorney aptly summarizes in this case, “A defendant who intends to kill one
person will be liable for multiple counts of murder where multiple victims die, but
only one count of attempted murder where no one dies.” But when no one dies
that person will be guilty of attempted murder even if he or she intended to kill a
random person rather than a specific one.
In this case, the information specifically alleged that defendant intended to
kill Joel F. This allegation was problematic given that the prosecution ultimately
could not prove that defendant targeted a specific person rather than simply
someone within the group. In hindsight, it would no doubt have been better had
the case been charged differently. In a case like this, the information does not
necessarily have to name a specific victim. Penal Code section 952 states it is
sufficient if the charge “contains in substance, a statement that the accused has
committed some public offense therein specified,” which “may be in . . . any
words sufficient to give the accused notice of the offense of which he is accused.”
(See also Pen. Code, § 951.) A defendant’s right to be informed of the charges “is
satisfied when the accused is advised of the charges against him so that he has a
reasonable opportunity to prepare and present a defense and is not taken by
surprise by the evidence offered at trial.” (People v. Ramirez (2003) 109
Cal.App.4th 992, 999.) If the defendant is accused of attempted murder of
someone, although not necessarily a specific person, it would be sufficient to
allege enough facts to give notice of the incident referred to and that the defendant
is charged with attempted murder. For example, in this case, it would have been
sufficient to allege that defendant committed attempted murder in that on or about
October 21, 2005, he attempted to murder a member of a group of persons
gathered together in a parking lot in Lemoore, California. Although other ways to
charge a case like this no doubt exist, a charge like this example would provide
adequate notice of the offense of which defendant was accused.
The Court of Appeal should reconsider the issues of this case in light of the
views expressed in this opinion. In doing so, the court should consider any issues
regarding the variance between the information — alleging defendant intended to
kill Joel F. — and the proof at trial — defendant intended to kill someone although
not specifically Joel F. (See Pen. Code, § 956.)
We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with our opinion.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Stone
Review Granted XXX 160 Cal.App.4th 937
Date Filed: April 23, 2009
Judge: Peter M. Schultz
Attorneys for Appellant:Linnea Johnson and Patricia L. Watkins, under appointments by the Supreme Court, for Defendant and
Attorneys for Respondent:Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General;
Ronald L. Calhoun, District Attorney, Adam Nelson and Mitchell Keiter, Deputy District Attorneys, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Linnea Johnson
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
Deputy District Attorney
1400 West Lacey Boulevard
Hanford, CA 93230
Petition for review after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses. This case presents the following issues: (1) In a prosecution for a single count of attempted murder, did the trial court err by instructing the jury on the "kill zone" concept (see People v. Bland (2002) 28 Cal.4th 313) when defendant fired a single shot into a crowd although he was ostensibly not shooting at anyone in particular and there was no "primary" target? (2) Did substantial evidence support defendant's conviction for attempted murder in this case?
|Thu, 04/23/2009||46 Cal. 4th 131, 205 P.3d 272, 92 Cal. Rptr. 3d 362||S162675||Review - Criminal Appeal||closed; remittitur issued|
|1||Stone, Nicholas Scott (Defendant and Appellant)|
Represented by Patricia L. Watkins
Attorney at Law
80-Q N. Cabrillo Highway, Suite 503
Half Moon Bay, CA
|2||Stone, Nicholas Scott (Defendant and Appellant)|
Represented by Linnea Marie Johnson
Central California Appellate Program
2407 "J" Street. Suite 301
|3||The People (Plaintiff and Respondent)|
Represented by Mitchell Keiter
Office of the District Attorney - Orange County
1400 West Lacey Blvd.
|4||The People (Plaintiff and Respondent)|
Represented by Adam Lenzi Nelson
Office of the District Attorney
1400 W. Lacey Boulevard
|5||The People (Plaintiff and Respondent)|
Represented by Clayton S. Tanaka
Office of the Attorney General
1300 "I" Street
|Apr 23 2009||Opinion: Reversed|
|Apr 16 2008||Received untimely petition for review|
The people, Respondent by Adam Nelson, counsel
|Apr 16 2008||Application for relief from default filed|
|Apr 17 2008||Petition for review filed with permission|
The People, Respondent
|Apr 17 2008||Record requested|
|Apr 18 2008||Received Court of Appeal record|
|May 7 2008||Answer to petition for review filed|
Nicholas Scott Stone, defendant and appellant by Patricia L.Watkins, CA-appointed counsel
|Jun 12 2008||Time extended to grant or deny review|
The time for granting or denying review in the above-entitled matter is hereby extended to and including July 16, 2008, or the date upon which review is either granted or denied.
|Jun 25 2008||Petition for review granted (criminal case)|
George, C. J., was absent and did not paticipate. Corrigan, J., was absent and did not participate. Votes: Chin, A. C. J., Kennard, Baxter, Werdegar, and Moreno, JJ.
|Jul 15 2008||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Patricia L. Watkins is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
|Jul 25 2008||Request for extension of time filed|
For respondent to file the opening brief on the merits, to 8-9-08.
|Jul 25 2008||Filed:|
Request of Kings County District Attorney to associate Mitchell Keiter (Orange County) as additional counsel for respondent.
|Jul 28 2008||Filed:|
Request of Orange County D.A. to withdraw request of Mitchell Keiter to associate as counsel for respondent. (faxed)
|Aug 1 2008||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 9, 2008.
|Aug 11 2008||Opening brief on the merits filed|
The People, respondent
|Sep 3 2008||Request for extension of time filed|
for appellant to file the answer brief on the merits, to 10-10-08.
|Sep 10 2008||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 10, 2008.
|Oct 7 2008||Request for extension of time filed|
for appellant to file the answer brief on the merits, to 11-10-08.
|Oct 16 2008||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 10, 2008.
|Nov 10 2008||Answer brief on the merits filed|
Nicholas Stone, appellant Patricia Watkins, counsel
|Dec 2 2008||Reply brief filed (case fully briefed)|
The People, respondent Mitchell Keiter, Dep. Dist. Atty. (timely per CRC 8.25b)
|Dec 11 2008||Compensation awarded counsel|
|Feb 3 2009||Case ordered on calendar|
to be argued on Wednesday, March 4, 2009, at 9:00 a.m., in San Francisco
|Feb 11 2009||Application filed|
Request to associate counsel for oral argument filed by Patricia Watkins, counsel appointed for appellant Stone, asking to associate Linnea Marie Johnson.
|Feb 18 2009||Order filed|
Upon request of appellant for appointment of associate counsel, Linnea Marie Johnson is hereby appointed to represent appellant as associate counsel on the appeal now pending in this court.
|Mar 2 2009||Received:|
Letter (additional authorities) from counsel for respondent
|Mar 4 2009||Cause argued and submitted|
|Apr 22 2009||Notice of forthcoming opinion posted|
|Apr 23 2009||Opinion filed: Judgment reversed|
We reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with our opinion. Majority Opinion by: Chin, J. ----- Joined by George, C. J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ.
|Jun 11 2009||Remittitur issued|
|Jun 18 2009||Compensation awarded counsel|
|Jul 9 2009||Returned record|
|Jul 9 2009||Note:|
Case record sent to court of appeal
|Aug 11 2008||Opening brief on the merits filed|
|Nov 10 2008||Answer brief on the merits filed|
|Dec 2 2008||Reply brief filed (case fully briefed)|
|May 2, 2010|
Annotated by dconner
The defendant and his friends were involved in a gang conflict. The defendant was the passenger in a car driving past a group of 10 rival gang members. The Defendant fired one shot into the crowd. No one was hit. The defendant was charged with the attempted murder of Joel F., a member of the crowd.
At the trial court level, the defendant was convicted of attempted premeditated murder. The trial judge gave the jury a “kill zone” instruction that was a modified version of CALCRIM No. 600. Part of the instruction stated: “In order to convict the defendant of the attempted murder of [Joel F.], the People must prove either that the defendant intended to kill [Joel F.], or that he not only intended to kill another human being, but also that he intended to kill anyone within the ‘kill zone,’ and that [Joel F.] was in the zone of harm or ‘kill zone’ at the time of the shot.” Though the district attorney admitted that he had failed to prove intent to kill Joel F. specifically, he argued that the defendant could nevertheless be convicted of attempted murder because the defendant had intent to kill someone.
The Court of Appeal reversed the conviction, stating that the trial court judge prejudicially misinstructed the jury on the intent required for attempted murder. The court also stated that there was insufficient evidence for an attempted murder conviction.
The district attorney appealed to the Supreme Court of California.
Can a person who shoots into a group of people, intending to kill one of the group, but not knowing or caring which one, be convicted of attempted murder?
Yes. A defendant may be convicted of attempted murder when he has generalized intent to kill someone rather than a specific individual.
Reasoning (J. Chin):
The Supreme Court of California discussed a previous case, People v. Bland, at length, since it supposed that the Court of Appeal had based its reversal on the Court’s holding in that case. In Bland, the defendant was charged with murdering the driver of a car and attempting to murder the two passengers. The evidence showed that the defendant targeted the driver but not the passengers. The Stone court noted that a person who intends to kill someone can be found guilty of the murder of everyone actually killed. However, the Court revisited language from the Bland opinion regarding the differences in the mental state requirements for attempted murder: “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 . . . 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.” The Court also noted the “kill zone” theory discussed in Bland: “[I]f 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.” Thus, the kill zone theory could support the attempted murder convictions in Bland and did not require a special jury instruction.
The Court agreed with the Court of Appeal that it was error for the trial court to give the kill zone instruction on the facts of this case, since there was a single attempted murder charge. The kill zone instruction is appropriate when the defendant intended to kill a specific target victim and there may be other nontargeted attempted murder victims in the vicinity.
However, the Court noted that the Court of Appeal’s conclusions (1) that the kill zone instruction error was prejudicial and (2) that there was insufficient evidence for an attempted murder conviction, might have been based on the understanding that attempted murder requires intent to kill a specific person. The Court concluded that this intent was not necessary. It held that “a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind.” The Court stated the general rule as follows: “‘A defendant who intends to kill one person will be liable for multiple counts of murder where multiple victims die, but only one count of attempted murder where no one dies.’ But when no one dies that person will be guilty of attempted murder even if he or she intended to kill a random person rather than a specific one.”
The Court clarified the differences between the mens rea requirements for murder and attempted murder: “Attempted murder requires express malice, i.e., intent to kill. Implied malice — a conscious disregard for life — suffices for murder but not attempted murder. In addition, transferred intent does not apply to attempted murder.”
The Court also noted that an ideal charge here would have been for attempted murder without naming a particular victim.
The Court reversed the judgment of the Court of Appeal and remanded the case.