In People v. Mumin, the Supreme Court today holds evidence didn’t support a jury instruction on a concurrent intent, or “kill zone,” theory of attempted murder. It’s a follow-up to the court’s decision in People v. Canizales (2019) 7 Cal.5th 591 that put strict limits on when a defendant can be convicted of attempted murder of someone who was not a primary target. (See here.) But the court also concludes a “kill zone” instruction is proper when evidence supports the theory even when the trial court “itself concludes another reasonable inference could be drawn that does not support a concurrent intent theory.”
Besides the law stated, the court’s opinion by Justice Carol Corrigan is notable for reversing the Fourth District, Division One, Court of Appeal published opinion; notable because the Division One opinion was authored by current Chief Justice and then-Court of Appeal Justice Patricia Guerrero. In the Supreme Court case, Third District Justice Ronald Robie is sitting pro tem in the Chief Justice’s place.
The Supreme Court finds Guerrero’s opinion “applied the proper standard” of review, but went wrong applying an “overbroad” analysis when it concluded “sufficient evidence supported the giving of a concurrent intent instruction.”
Today’s decision says that the “act of firing one or a few shots at a group . . . , standing alone, . . . 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” and that a concurrent intent theory is not supported “[w]ithout substantial evidence showing the defendant acted with intent to kill a primary target.” A concurrent intent instruction, the court finds, “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.”
Unlike the court’s opinion in People v. Schuller, also filed today, the Mumin decision does a harmless-error analysis itself and doesn’t delegate that determination to the Court of Appeal. Applying a heightened standard of review, the court says it “cannot conclude the [instructional] error was harmless beyond a reasonable doubt.”
Justice Goodwin Liu separately concurs, joined by Justice Kelli Evans. He writes in an extended opinion, “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.”
In addition to reversing the Court of Appeal’s Mumin opinion, the court disapproves the Second District, Division Seven, decision in In re Rayford (2020) 50 Cal.App.5th 754, review denied, and the Fourth District, Division Two, decision in In re Sambrano (2022) 79 Cal.App.5th 724.