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Recent Fourth Appellate District Opinion on Kill Zone

In 2013, Jessie Sambrano and his two codefendants, Anthony Lares and Daniel Torres, all alleged members of a criminal street gang called Varrio Coachella Rifa (“Varrio Coachella”), drove into the territory of a rival gang, North Side Indio (“North Side”). 

After repeatedly driving past a group of people gathered outside a house, Sambrano (the driver) stopped the car and Lares and Torres began shooting. 

Lares admitted firing at least ten rounds from his .30-caliber M1 carbine rifle and Torres fired an unknown number of shots from a .22-caliber handgun that held five rounds.  The shots killed one person, a female, and seriously wounded two other people, all of whom were outside the house at the time of the shooting.  Lares and Torres did not know the victim.  Sambrano also did not know her.  In fact, the three knew no one there.

At trial, it was significant that the parties disagreed about the motivation for the shooting.  The prosecution argued that it was gang-related and that the three Varrio Rifa members were retaliating for graffiti in Varrio Coachella territory and because Varrio Rifa obliterated Varrio Coachella graffiti own gang graffiti.  Such disrespectful acts had to be retaliated with violence or else the reputation of the gang would be diminished.

The defense argument was that they three were looking for Torres’ girlfriend and that Torres fired one shot into the group.  Lares, who was high from various substances he had ingested, mistakenly thought the group was shooting back at him, Torres and Sambrano, so he shot in self defense back at the crowd.  The defense did not have any specific person they intended to shoot.

Mr. Sambrano was convicted of six counts of attempted murder and following the California Supreme Court ruling in People v. Canizales (2019) 7 Cal. 5th 591, filed a petition for habeas corpus.

As the reader of this article may already by aware, Canizales clarified the requirements for a “kill zone” theory of murder or attempted murder.  Perhaps in response to prosecutions wherein the People would argue a “kill zone” theory whenever a defendant shot into a crowd, often in a gang-related context, and convictions were more easily obtained, the California Supreme Court addressed this unfair situation.  Indeed, often the shooter had no intent but to scare a group of people, particularly when the shooting is from a passing car into a home or outdoor gathering, as here.

In Canizales, the California Supreme Court made it clear that for the jury to be instructed using a “kill zone” instruction, the prosecution must show there was one intended target and that the shooter exposed everyone to a lethal risk as a way of ensuring the death of the primary target.  This is often where a shooter shoots into a group, knowing many will be shot, but intending that the intended target is killed. 

It is not enough that a shooter intended to shoot one person, but exposed many others to a lethal risk, or that defendant acted with conscious disregard for the risk of serious injury or death near the primary target.  Instead, the shooter must know he is killing many people in a zone as a means of ensuring the death of one person.  Canizales, supra, at 607.

For purposes of attempted murder, the Canizales court set forth two critical requirements before such a conviction can stand on a “kill zone” theory.  The jury must find:

“That the circumstances of 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 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

The alleged attempted murder victim who was not the primary target was located within the zone of harm.  Taken together, such evidence will support a finding that the defendant harbored the specific intent to kill both the primary target and everyone within the zone of fatal harm.” Canizales, at 607.

For Sambrano to benefit retroactively, normally this is barred if the issue could have been raised on appeal and was not or it was raised and rejected earlier.  However, there is an exception when there is a substantive change in the law.  In re Rayford (1997) 57 Cal. App. 4th 620, 627. 

In Sambrano’s case, the same jury instruction (CALCRIM No. 600) was used as in Canizales, which found such statements of the law erroneous and unduly prejudicial.  The critical error, it seemed, in both cases was the lack of an identifiable primary target. 

The Fourth Appellate District therefore granted the writ of habeas corpus and remanded the case with instructions to vacate Sambrano’s six attempted murder convictions and the People can then decide whether to retry him.

We present this summary as an example of an erroneous conviction on a pre-Canizales “Kill Zone” theory that was eligible for retrial.

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