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Criminal Defense Attorneys

Example of When Kill Zone Jury Instruction is Proper

A San Diego County jury convicted Ahmed Mumin of first-degree murder (Penal Code §§ 187(a), 189), burglary (Penal Code § 459) and robbery (Penal Code § 211) for his role in a San Diego convenience store robbery in 2015. 

This was only one of two events at trial.  There was a second, more controversial part of the trial as well.

At the convenience store crime scene immediately following the robbery / burglary and murder, homicide detectives from the San Diego Police Department performed expedited, same-day DNA testing on a nine-millimeter cartridge casing found at the scene, as well as a knit cap found nearby.  Based on that testing, the criminalist identified Mumin as a potential source of DNA from the items.

Police then went to an apartment complex on Winona Avenue in San Diego where they believed Mumin lived.  They found a backpack with Mumin’s ID and ammunition there.  They then went to a community room where a witness stated he had seen Mumin enter.

Two officers loudly identified themselves as police outside two adjoining doors leading into the room.  Just as one officer opened one door, Mumin, hiding in the room, fired one shot at the door that was opened, as well as two shots at the other door nearby that was not opened.  The detectives returned fire and ordered him to exit and he complied.  Detectives found that Mumin had fired hollow-point ammunition.

The jury, in hearing the evidence regarding this shoot-out event, also convicted Mumin of two counts of premeditated, attempted murder of a police officer (Penal Code §§ 187(a), 189, 664), two counts of assault on a peace officer with a semiautomatic firearm (Penal Code § 245(d)(2)), two counts of assault with a semiautomatic firearm (Penal Code § 245(b)), one count of possession of a firearm by a felon (Penal Code § 29800(a)(1)), and possession of ammunition by a prohibited person (Penal Code § 30305(a)(1)).

The trial court sentenced Mumin to life imprisonment without the possibility of parole, plus an additional consecutive term of 55 years to live and a consecutive determinative term of 41 years and four months.

Mr. Mumin appealed on many grounds, but the scope of this article will only consider his argument that the evidence did not support a jury instruction on the kill zone theory of attempted murder liability under People v. Canizales (2019) 7 Cal. 5th 591.

Canizales is perhaps the most defense-friendly ruling, by the California Supreme Court no less, on the kill zone theory of liability.  The Supreme Court held, among other things, that “[T]rial 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 defendant intended to kill everyone in the zone of fatal harm.”

The Canizales court further warned that “[P]ermitting reliance on the kill zone theory in such cases risks 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 for 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, at 597.

Here, the Fourth Appellate District found the jury instructions on the kill zone theory were properly given, as all three shots went through the two doors from which police were about to enter.  This showed an intent to kill the one officer who did open the door, as well as the other officer in the zone of the primary target.  Moreover, he used hollow-point bullets that are particularly damaging to human flesh due to their design.  In addition, Mumin fired all three shots in rapid succession.

We present this article to show facts that did allow the kill zone jury instruction, which some defendants believe needs extraordinary facts and that judges are extremely reluctant to use, but this is not accurate.

For more information about the kill zone jury instruction, please click on the following articles:
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