California Supreme Court Clarifies Kill Zone Theory

The “Kill Zone” theory of liability for murder and / or attempted murder is often seen as a clever way for prosecutors to achieve convictions for multiple counts and, consequently, has led to overreliance, particularly on vague facts. Instead, a jury instruction on this theory really should be given sparingly and only when such a theory is strictly supported by the facts.

The California Supreme Court seems to agree with this in a recent ruling, People v. Ahmed Mumin (August 17, 2023), wherein it clarified a conflict among the appellate districts within California on the correct standard to apply when the “Kill Zone” theory is applied to an attempted murder. See People v. Canizales (2019) 7 Cal. 5th 591.

While the highest court did not “kill the kill zone” as one amicus brief urged, pointing out that cases that actually fit the theory are rare, but there are hundreds of convictions relying on it (many of which should probably be overturned), the highest court ruled that the judge in Mumin improperly instructed the jury on this theory when the prosecution failed to argue the shooter had a specific, primary target, but had the intent to kill everyone in the immediate vicinity.

To understand this finding of error, one must understand the facts of the case.

On April 16, 2015, Mr. Mumin robbed a San Diego convenience store and while doing so, fatally shot a customer in the store. DNA at the scene linked Mumin as a suspect and the store clerk identified him as the shooter. Mumin left the store and apparently got away.

Two days later, however, Mr. Mumin was at an apartment complex and police arrived. Mumin ran and hid his backpack in bushes nearby, which police found and in it was Mumin’s identification and some nine millimeter ammunition.

An extensive search of the apartment complex then took place. There were nearly 20 police officers involved, as well as a police helicopter overhead. After about an hour of searching, two officers approached a building with four adjacent doors leading to a community room. The building was near the bushes where Mumin had tried to hide his backpack. The doors had no windows.

The officers realized if Mumin was behind the door, he might shoot out through the door at them, so they positioned themselves to the side of the door before opening it. As expected, when one of the officers started to open the first door, Mumin fired three times, once through the opened door and twice through an adjacent door. Neither officer was hit. Officers returned fire, wounding Mumin, who then surrendered.

Mumin was then tried on the convenience store murder and the apartment complex shooting. Concerning the apartment complex, the jury convicted Mumin of attempted, premeditated murder of a police officer with a semiautomatic firearm, among many other charges, including many sentence enhancements.

During trial, the judge instructed the jury on the concurrent intent theory of liability for attempted murder of the two officers.

Mr. Mumin argued many points on appeal, but the scope of this article will narrow to just Mr. Mumin’s argument that the trial court judge erred in instructing the jury on concurrent intent for attempted murder of both officers.

The California Supreme Court first recognized that 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.” Penal Code § 21a.

In the context of attempted murder, People v. Bland (2002) 28 Cal. 4th 313 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 327. However, attempted murder requires the specific intent to kill.

Bland examined 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. Bland, pp. 320-321.

Bland then built on that principle to hold that, even when a defendant succeeds in killing hi intended target, his intent to kill extends to any others he actually kills. Bland, pp. 321-326.

To be guilty of attempted murder of a person who survives, the defendant must intend to kill that survivor. Bland, p. 326-328.

Canizales, supra, reaffirmed Bland’s concurrent intent theory but articulated its contours and limitations. Canizales 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 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, pp. 598-601. There was evidence that Pride was Windfield’s primary target.

Canizales explained that concurrent intent relied on circumstantial evidence to establish that defendant acted with the specific intent to kill not only the primary target but also everyone in the kill zone. Canizales, p. 606.

In Mr. Mumin’s case, the Supreme Court found the “Kill Zone” theory of liability did not apply because Mr. Mumin was unable to see a primary target since he was behind a door with no windows, let alone know there was anyone else in the “kill zone” of the primary target, so use of the “Kill Zone” theory was improper. Therefore, the Supreme Court agreed with Mr. Mumin that the concurrent intent instruction should not have been given because it was not factually supported and the error was not harmless.

Therefore, the verdict was reversed and the case was remanded as to the one attempted murder that was based on the concurrent intent theory.