Canizales and the kill zone

The California Supreme Court in People v. Canizales, 7 Cal. 5th 591 (2019) brought welcome clarity to the law of the kill zone theory. But even after Canizales there still appear to be some potential sources of confusion about the theory.

As I explained in part one, the kill zone theory applies only if the defendant specifically intends to kill a primary target by killing everyone in the primary target's vicinity (e.g., by blowing up an airplane on which the primary target is a passenger). But some lawyers and judges have interpreted the theory more broadly to apply to any case in which the defendant attacks a target in a manner that puts others nearby in mortal danger. Perhaps the most extreme example of this interpretation is People v. Adams, 169 Cal. App. 4th 1009 (2008), which held that under the kill zone theory, attempted murder liability extends to all victims for whom it was "a natural and probable consequence" that they "could or would die." On that broad interpretation, (1) the kill zone theory creates an exception to the specific intent requirement for attempted murder, and (2) almost any case of shooting toward a crowd is a kill zone case.

The good news is that Canizales resolves that debate. The broad interpretation is wrong.

Canizales rejects the broad interpretation by quoting and endorsing the description of the kill zone theory in People v. Medina, 33 Cal. App. 5th 146 (2019). Medina explained that the kill zone theory does not apply if "the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given." Id. at 156. The Supreme Court quoted all of that language with approval. The court added that the kill zone theory requires that the "defendant intended to kill everyone in the kill zone as a means of killing the primary target." Canizales, 7 Cal. 5th at 607, n.5.

That would seem to put the fundamental interpretive issue to rest. The kill zone theory applies only to bomb-on-an-airplane type scenarios, attacks in which the perpetrator specifically intends to kill everyone in the zone as a means of killing the primary target.

So that's the good news. The bad news is that opportunities for confusion nonetheless remain plentiful. (Canizales also does not mention Adams, which hence is not red-flagged in online databases, but Adams's holding would appear to be inconsistent with Canizales.)

For example, in previous cases the Supreme Court stated that the kill zone theory allows for a defendant to be convicted of the attempted murder of "untargeted" or "nontargeted" persons, which some courts interpreted as referring to persons whom the defendant did not intend to kill. That would seem to be incorrect, given the Supreme Court's endorsement of Medina -- the court's references to "untargeted" or "nontargeted" persons apparently just mean persons other than the primary target. But Canizales does not discuss any of this. Instead, it uses the terms "untargeted" and "nontargeted" in the same way as prior cases, leaving the door open to conflicting interpretations as before. Canizales, 7 Cal. 5th at 603-04, 606, 608.

Similarly, Canizales continues the Supreme Court's practice of articulating the kill zone theory in terms of "concurrent intent" without directly explaining what that term means. As I discussed in part one, "concurrent" just means "at the same time," and the court's references to "concurrent intent" would seem to mean nothing more than that a defendant who specifically intends to kill a primary target might at the same time (i.e., concurrently) specifically intend to kill everyone in the vicinity as a means of killing the primary target -- the defendant's specific intent to kill is not "used up" on the primary target. But some lawyers and judges seem to have thought "concurrent intent" is a new and different type of intent that can substitute for the specific intent that is otherwise required for attempted murder. Because Canizales parallels prior cases in using the term "concurrent intent" without precisely explaining what it means--or why we need it at all -- the potential for conflicting interpretations on this point persists as well.

At the same time, we should not overstate the degree to which the kill zone theory remains clouded by possible interpretive disputes after Canizales. On the contrary, as I argued in part one of this article, the broad interpretation of the kill zone theory actually appeared to be doomed from the start because the Supreme Court has repeatedly stated that a kill zone instruction is never required. People v. Stone, 46 Cal. 4th 131, 137-38 (2009); People v. Smith, 37 Cal. 4th 733, 746 (2005); People v. Bland, 28 Cal. 4th 313, 331, n.6 (2002). But if the kill zone theory (and "concurrent intent") allowed a defendant to be convicted of the attempted murder of persons whom the defendant did not specifically intend to kill, then a kill zone instruction would always be required whenever the kill zone theory applies, because the theory would change the elements of the offense. Given that a kill zone instruction is never required, it would seem to follow that the kill zone theory does not create an exception to the specific intent requirement.

Canizales does not expressly reiterate that kill zone instructions are never required. But the court did not repudiate or appear to cast doubt on that well-established proposition. Thus, for that reason as well, perhaps there is less to the potential sources of interpretive conflict than one might have thought. 