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Erroneous kill zone instruction requires reversal

In re Sambrano (Cal. Ct. App., June 9, 2022, No. E078147) 2022 WL 2071115, at *1–4

Summary:In this habeas corpus proceeding, Sambrano seeks reversal of his attempted murder convictions because his jury was given a kill zone instruction that is erroneous under People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 (Canizales). The court granted the petition.
and reiterated the following principles concerning the kill zone theory:

• If there is no evidence of a primary target, then the kill zone theory does not apply. (Canizales, supra, 7 Cal.5th at p. 608, 248 Cal.Rptr.3d 370, 442 P.3d 686 [“evidence of a primary target is required”].)
• If the evidence shows only that the defendant intended to kill everyone in a particular area, but not as a means of ensuring the death of a primary target, then the kill zone theory does not apply. (Canizales, supra, 7 Cal.5th at p. 607 [a kill zone is “an area in which the defendant intended to kill everyone present to ensure the primary target’s death”].)
• If there is evidence of a primary target, but the evidence shows only that the defendant subjected people near the primary target to lethal risk, or that the defendant acted with conscious disregard of the risk of serious injury or death for people near the primary target, then the kill zone theory does not apply. (Canizales, supra, 7 Cal.5th at p. 607.)
• Jury instructions on the kill zone theory are never required. (People v. Stone (2009) 46 Cal.4th 131, 137-138. (Stone);
Facts:
Sambrano and his codefendants, Lares and Torres, are alleged members or associates of a gang called Varrio Coachella Rifa 52 (Varrio Coachella). They drove into the territory of a rival gang, North Side Indio (North Side). Sambrano drove the car, Torres was the front passenger, and Lares was in the back seat. After repeatedly driving past a group of people gathered outside a house, Sambrano stopped the car, and Lares and Torres began shooting. Lares admitted firing at least 10 rounds from his .30–caliber M1 carbine rifle. Torres fired an unknown number of shots from a .22–caliber handgun that held five rounds. The shots killed one person and seriously wounded two others, all of whom were outside the house at the time of the shooting.
At trial, the parties disagreed about the motivation for the shooting.
Both Sambrano and Lares eventually admitted that they were involved in the shooting.
The Rodriguez family lived in the house where the shooting occurred. Jacob Rodriguez and his girlfriend had just walked out the front door when the gunfire started. Jacob’s girlfriend was hit by three bullets and died. Jacob and another attendee who was standing outside were hit by bullets too, but they survived. The four remaining attempted murder counts involved four people who were inside the house when the shooting occurred. Three of them were children. None was hit by a bullet.
Timeliness if Habeas Petition

“Whether a claim has been timely presented is assessed based on an indeterminate reasonableness standard.” (Robinson v. Lewis (2020) 9 Cal.5th 883, 890. (Robinson).) We assume for purposes of our analysis that as of the Supreme Court’s issuance of Canizales in June 2019 (Canizales, supra, 7 Cal.5th at p. 591.), Sambrano “ ‘ “knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim” ’ ” (In re Reno (2012) 55 Cal.4th 428, 460)
Sambrano is not a lawyer, and he was not represented by a lawyer between 2013 and 2021. In 2021, a lawyer was appointed to represent Sambrano on appeal from the denial of a resentencing petition under Penal Code section 1170.95. This habeas petition was filed by Sambrano’s attorney about two months later.The court concluded that given these circumstances the habeas petition was timely filed under the applicable “indeterminate reasonableness standard.”
Canizales and the Kill Zone Theory

“The elements of attempted murder are ‘specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. ‘When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be “transferred” from one attempted murder victim to another under the transferred intent doctrine.’ But consistent with those requirements, the kill zone theory, ‘yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant’s “primary target.” ’ ” (People v. Cardenas (2020) 53 Cal.App.5th 102. (Cardenas).)
In Canizales, the Supreme Court reexamined the kill zone theory and clarified its scope. (Canizales, supra, 7 Cal.5th at p. 606.; Cardenas, supra, 53 Cal.App.5th at p. 112.) Canizales held “that the kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the 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 the 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 (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm.” (Canizales, at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
The Supreme Court further explained that “the kill zone theory does not apply where ‘the defendant merely subjected persons near the primary target to lethal risk.’ ” (Canizales, supra, 7 Cal.5th at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.) The Supreme Court emphasized that “ ‘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.’ ”
Retroactivity of Canizales
In general, we will not issue a writ of habeas corpus for “an issue which was raised and rejected on direct appeal, or which could have been, but was not, raised on direct appeal.” (In re Saldana (1997) 57 Cal.App.4th 620, 627, 67 Cal.Rptr.2d 183.) “An exception to the rule applies ‘ “when there has been a change in the law affecting the petitioner.” ’ ” (In re Rayford (2020) 50 Cal.App.5th 754, 770, 264 Cal.Rptr.3d 401 (Rayford);
Sambrano argues that Canizales applies retroactively to cases like his that were final when the decision issued, because it substantively changed the law on the kill zone theory. The court agreed.
Applying both federal and state law retroactivity standards, Rayford held that Canizales, supra, 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686, applies retroactively to cases in which the judgment is already final. (Rayford, supra, 50 Cal.App.5th at pp. 770-778, 264 Cal.Rptr.3d 401.) Rayford concluded that Canizales affected a substantive change in the law. (Rayford, at pp. 776-778, 264 Cal.Rptr.3d 401.) Rayford further explained that Canizales “altered the range of conduct for which a defendant may be tried and convicted of attempted premeditated murder by holding trial courts should only instruct the jury on the kill zone theory of concurrent intent where ‘there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm.’ ” (Rayford, at p. 777, 264 Cal.Rptr.3d 401.)

The Kill Zone Jury Instruction Was Erroneous
On the attempted murder counts, the trial court instructed the jury with former CALCRIM No. 600, stating that Sambrano could be found guilty of attempted murder if he created a kill zone and intended to kill everyone within that zone. The jury also was instructed that it could find Sambrano guilty of attempted murder if he intended to kill each of the six victims specifically. In closing argument, the prosecutor relied almost exclusively on the kill zone theory in arguing that Sambrano possessed the necessary mental state for the attempted murder counts.
In Canizales, the jury was instructed with the same version of CALCRIM No. 600 given here. (Canizales, supra, 7 Cal.5th at p. 601 & fn. 3.) Canizales concluded that the instruction did not accurately describe the kill zone theory. (Id. at pp. 609, 613.) Canizales explained that the instruction was flawed because it did not adequately define the term “kill zone” and failed to direct the jury to consider the circumstances of the attack in determining whether the defendant’s attempt to kill everyone around the primary target was undertaken as a mean of killing the primary target.
It was error to instruct the jury with the former version of CALCRIM No. 600. The instruction did not require the jury to find that Sambrano specifically intended to kill everyone in the area around the primary target as a means of killing that primary target, which is required for application of the kill zone theory. (Canizales, supra, 7 Cal.5th at p. 607.) The instruction did not define a kill zone in terms of a primary target at all—it did not even state that a kill zone is an area in which the primary target is located.

The petition for writ of habeas corpus is granted. The six attempted murder convictions are vacated.

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