        IN THE SUPREME COURT OF
               CALIFORNIA

                     THE PEOPLE,
                Plaintiff and Respondent,
                            v.
           MICHAEL RAFAEL CANIZALES et al.,
               Defendants and Appellants.

                           S221958

           Fourth Appellate District, Division Two
                         E054056

           San Bernardino County Superior Court
                       FVA1001265



                        June 24, 2019

Chief Justice Cantil-Sakauye authored the opinion of the court,
in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger and
Groban concurred.
                    PEOPLE v. CANIZALES
                            S221958


         Opinion of the Court by Cantil-Sakauye, C. J.


      This case concerns whether the trial court properly
instructed the jury on the so-called kill zone theory, under which
a defendant may be convicted of the attempted murder of an
individual who was not the defendant’s primary target. As we
shall explain, we conclude that a jury may convict a defendant
under the kill zone theory only when the jury finds that: (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.
       We caution, however, that trial courts must be extremely
careful in determining when to permit the jury to rely upon the
kill zone theory. The kill zone theory permits a jury to infer a
defendant’s intent to kill an alleged attempted murder victim
from circumstantial evidence (the circumstances of the
defendant’s attack on a primary target). But, under the
reasonable doubt standard, a jury may not find a defendant
acted with the specific intent to kill everyone in the kill zone if
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


the circumstances of the attack would also support a reasonable
alternative inference more favorable to the defendant. (See
CALCRIM No. 225.) Permitting reliance on the kill zone theory
in such cases risks the jury convicting a defendant based on the
kill zone theory where it would not be proper to do so. As past
cases reveal, there is a substantial potential 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 of 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.
       In the present matter, defendants Michael Canizales and
KeAndre Windfield were jointly charged and tried before a
single jury on counts including first degree murder and two
attempted murders. The trial court gave a kill zone instruction
in connection with one of the two alleged attempted murder
victims. The Court of Appeal concluded that the jury was
properly instructed on that theory, and upheld defendants’
attempted murder convictions. We conclude there was not
sufficient evidence in the record to support an instruction on the
kill zone theory, and that the error requires reversal of the
attempted murder convictions at issue because those convictions
may have been based on the kill zone theory even though that
theory was not properly applicable.
      Defendants raise the additional argument that instructing
pursuant to CALCRIM No. 600, the current standard
instruction regarding attempted murder, violated defendants’
federal constitutional rights to due process because it led the

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jurors to believe they could convict defendants of the attempted
murder of one victim without finding the requisite intent to kill.
In light of our conclusion that the judgment must be reversed
because the evidence was insufficient to support an instruction
on the kill zone theory, we need not address defendants’
constitutional challenge to CALCRIM No. 600.
          I. FACTS AND PROCEDURAL BACKGROUND
      The convictions in this case arose from a gang-related
shooting at a neighborhood block party on West Jackson Street
in Rialto. Travion Bolden and Denzell Pride, the alleged
attempted murder victims, both lived in apartments on West
Jackson and were members of the Hustla Squad Clicc, a large
Rialto-based criminal street gang. Defendants Canizales and
Windfield were members of a smaller gang called Ramona Blocc
that was also based in Rialto. The two gangs were rivals, and
shootings between them were commonplace.
      Around noon on July 18, 2008, Bolden and Pride saw
Canizales at a fast-food restaurant near West Jackson. The
encounter led to a brief argument between Pride and Canizales
over Canizales’s female companion.
      Later that same day, Bolden had his own confrontation
with Canizales after one member of a group of female friends
with whom Bolden was socializing outside his apartment called
out to Canizales to join them as he was passing by. Canizales
approached and, in what one witness described as a somewhat
aggressive manner, asked Bolden “what’s up” and where he was
from. When Bolden responded that he “didn’t bang,” Canizales
walked away. Bolden provided a somewhat different account to
an investigating officer, saying that he believed Canizales was
challenging him to a fight, that Bolden responded to that


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             Opinion of the Court by Cantil-Sakauye, C. J.


challenge by removing his shirt and approaching Canizales to
fight him, and that Canizales walked away once Bolden took off
his shirt. According to Bolden’s trial testimony, he felt that
Canizales had disrespected him and that, once Canizales had
left, Bolden immediately went to find Pride to tell him what had
happened. Pride quickly took off running after Canizales, with
Bolden following at a slower pace behind him. The pursuit was
cut short, however, when Pride’s mother yelled at him to stop
and he returned to where he and Bolden had been talking.
      After the encounter with Bolden, Canizales walked to a
nearby grocery store, from where he sent someone to summon
Ramona Blocc gang leader Windfield. About 8:35 p.m., after
joining Canizales outside the grocery store, Windfield spoke
briefly with the driver of a vehicle that had pulled up next to
them, then patted the car’s trunk and said “Jackson Street” as
the car drove away. Moments later, Windfield and Canizales
headed toward West Jackson, skipping and strutting, throwing
gang signs, and yelling “Ramona Blocc.”
      Meanwhile, people had begun to congregate on the 300
block of West Jackson to prepare for the neighborhood block
party that night. By nightfall, there were approximately 10 to
30 or more people outside on the sidewalks and in the street,
talking, dancing, and partying. Twenty-six-year-old Leica
Cooksey was with a group of young women who had gathered
around her parked car, dancing to the music on the car’s radio.
      The testimony at trial showed slightly different accounts
of where the victims were located prior to the shooting. For
example, Bolden testified that he and Pride were standing in the
street in front of Pride’s apartment on the same side of the street
as Cooksey and her friends, who were about 20 feet away. Other


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             Opinion of the Court by Cantil-Sakauye, C. J.


testimony indicated that Cooksey’s group was on the side of the
street opposite Pride’s apartment.
      Bolden testified that as he talked with Pride he noticed
that an unfamiliar car had passed them several times and then
parked on Willow Avenue, which runs perpendicular to the east
side of West Jackson’s 300 hundred block. Bolden and Pride
then saw five or six men, including Canizales and Windfield,
line up shoulder to shoulder near a manhole cover at the
intersection between West Jackson and Willow, facing West
Jackson.
       The evidence at trial provided somewhat different
versions of what happened next. Bolden testified that he
observed Windfield pull a gun out of his waistband and
attempted to pass it to Canizales, who did not take it. Bolden
then heard Windfield first say either, “That’s that little nigga,”
or, “There goes those little niggas right there,” and then “Bust.”1
Sparks and the sound of gunfire followed. According to Bolden,
after Windfield had fired the first shot, Pride grabbed Bolden
and they ran away from the direction of the gunfire. Pride
testified, however, that he was standing in front of his
apartment when the first shot was fired, and that he ran to his
young nieces and hurried them inside for safety.
      Bolden had provided still another version of the shooting
in a recorded interview by Detective Williams that occurred two
years after the shooting and about one year prior to trial. In
that account, Bolden told the officer he was standing inside a
West Jackson apartment building’s front yard gate smoking
marijuana with some neighbors when he noticed an unfamiliar


1
      “Bust” is a slang term for “shoot.”


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                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


car pass by several times. When the car’s occupants got out of
the vehicle on Willow Avenue and started walking, he heard
Windfield say, “That’s the little nigga right there.” The officer
asked Bolden whether Windfield was referring to him (Bolden).
Bolden replied that they had seen Pride because Pride “gave it
away when he started runnin’ ” and that was when the
“gunshots came on.” Pointing to a location on the investigator’s
map, Bolden said that Pride had been talking on his phone while
standing near a parked car that was about four car lengths away
from him, closer to Willow. When Bolden heard someone yell
“bust,” he came out from the gate to find Pride. Moments later,
Bolden saw a gunshot flash and started running.
      Bolden further testified that once the shooting had begun,
he ran away along the sidewalk in a straight line but that Pride
zig-zagged back and forth across the street, at one point running
behind a bus that was parked on the same side of the street
where Cooksey and her friends were dancing to her car’s radio.
Bolden could hear the gunfire coming their way, with bullets
flying by them and “tingling through the gates.” Bolden also
believed, however, that Windfield could not control his gun, and
he described the bullets as “going everywhere.” When Windfield
stopped shooting, he and Canizales ran down Willow Avenue,
away from the scene.
      Neither Pride nor Bolden was hit by gunfire, but one of the
shots struck Cooksey in the abdomen and she later died as a
result of that injury. Investigators found five expended
cartridge casings at the corner of West Jackson and Willow,
approximately 100 feet from where Cooksey was shot. The
casings were nine millimeter and all of them had been fired from
a single semi-automatic gun. A defense investigator determined



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that the distance from the manhole cover on Willow to where
Pride and Bolden stood when the shooting began was 160 feet.
       Detectives spoke with Canizales and Windfield shortly
after the shootings but the investigation stalled and no charges
were filed. Meanwhile, Pride and Bolden had left the area and
could not be located. About one year after the incident, however,
Windfield told a family friend that he and Canizales had gone to
West Jackson to shoot the Hustla Squad member who had killed
his cousin. Windfield explained that a girl got in the way of his
gunfire while the person he was shooting at ran away. Four
months after that conversation, Windfield’s friend reported the
confession to police, and the investigation reopened. Although
officers had difficulty locating Bolden and Pride, they eventually
obtained statements from them describing the incident and
implicating Canizales and Windfield in the shooting.
      Canizales and Windfield were charged by amended
information with the deliberate, premeditated murder of
Cooksey, the deliberate, premeditated attempted murders of
Bolden and Pride, and street terrorism. (Pen. Code, §§ 187,
subd. (a); 664, subd. (a) and 187, subd. (a); 186.22, subd. (a).)2
The amended information also alleged that Canizales and
Windfield committed the crimes to benefit a street gang, and
that a principal personally discharged a firearm causing death,
within the meaning of sections 186.22, subdivision (b), and
12022.53, subdivisions (b), (c), (d), and (e)(1). Neither Canizales
nor Windfield testified at trial. At the close of evidence, the


2
     All further statutory references are to the Penal Code
unless otherwise indicated.



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                        PEOPLE v. CANIZALES
              Opinion of the Court by Cantil-Sakauye, C. J.


court dismissed the street terrorism charge and several of the
firearm enhancements in the interest of justice.
      The court instructed the jury on attempted murder using
CALCRIM No. 600.3 During closing argument, which occurred
after the court had given its instructions, the prosecutor offered
two theories of defendants’ liability for the attempted murder of
Bolden. She argued first that the evidence showed Windfield
was shooting at, and attempting to kill, both Pride and Bolden,
presumably because they were members of the Hustla Squad
gang. She then described the concept of the kill zone. The
prosecutor told the jury that “[i]f they’re shooting at someone
and people are within the zone that they can get killed, then
you’re responsible for attempted murder as to the people who
are within the zone of fire. Okay. So there were times when
[Bolden] told you that he was with [Pride], near [Pride], close
proximity to [Pride]. So they’re both within the zone of fire, the
range [of] the bullets that are coming at them.”



3
        The instruction provided, as relevant here, that the
prosecution had to prove two elements to prove attempted
murder: “1. The defendant took a direct but ineffective step
toward killing another person; and 2. The defendant intended to
kill that person [¶] . . . [¶] A person may intend to kill a
particular victim or victims and at the same time intend to kill
everyone in a particular zone of harm or ‘kill zone.’ In order to
convict a defendant of the attempted murder of . . . Bolden, the
People must prove that the defendant not only intended to
kill . . . Pride but also either intended to kill . . . Bolden, or
intended to kill everyone within the kill zone. If you have a
reasonable doubt whether the defendant intended to
kill . . . Pride by killing everyone in the kill zone, then you must
find the defendant not guilty of the attempted murder.”



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             Opinion of the Court by Cantil-Sakauye, C. J.


      As relevant here, the jury found both defendants guilty of
the first degree murder of Cooksey and the premeditated
attempted murders of Bolden and Pride, and found as to all
three counts that the offenses were committed for the benefit of
a criminal street gang.       The Court of Appeal reversed
Canizales’s first degree murder conviction of Cooksey in light of
this court’s decision in People v. Chiu (2014) 59 Cal.4th 155
(Chiu),4 but otherwise affirmed the judgments. In upholding the
attempted murder convictions, the Court of Appeal expressly
disagreed with the formulation of the kill zone theory’s
requirements set forth in People v. McCloud (2012)
211 Cal.App.4th 788 (McCloud).
       We granted review in light of the conflict in the Courts of
Appeal regarding the evidentiary basis for applying, and
instructing on, the kill zone theory for establishing the intent to
kill element of attempted murder.
                         II. DISCUSSION
      A. The kill zone theory of attempted murder
         liability
      To prove the crime of attempted murder, the prosecution
must establish “the specific intent to kill and the commission of
a direct but ineffectual act toward accomplishing the intended
killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) When a


4
      Chiu held that an aider and abettor’s liability for first
degree premeditated murder cannot be based on the natural and
probable consequences doctrine. (Chiu, supra, 59 Cal.4th at
pp. 158-159.) In reversing Canizales’s conviction, the Court of
Appeal explained that it was unable to conclude beyond a
reasonable doubt that the jury based its first degree murder
verdict on the legally valid theory that he aided and abetted
premeditated murder.


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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. (People
v. Bland (2002) 28 Cal.4th 313, 327-328 (Bland).)
      Direct evidence of intent to kill is rare, and ordinarily the
intent to kill must be inferred from the statements and actions
of the defendant and the circumstances surrounding the crime.
(People v. Sanchez (2016) 63 Cal.4th 411, 457; People v. Smith
(2005) 37 Cal.4th 733, 741 (Smith); People Lashley (1991)
1 Cal.App.4th 938, 945-946.)
      In Bland, supra, 28 Cal.4th 313, this court expressly
embraced the concept of a concurrent intent to kill as a
permissible theory for establishing the specific intent
requirement of attempted murder. Under that theory, which
was first articulated by the Maryland high court in Ford v. State
(Md. 1993) 625 A.2d 984 (Ford), the nature and scope of the
attack directed at a primary victim may raise an inference that
the defendant “ ‘intended to ensure harm to the primary victim
by harming everyone in that victim’s vicinity.’ ” (Bland, at
p. 329, quoting Ford, at p. 1000.) Quoting extensively from
Ford, the Bland decision illustrated the notion of a concurrent
intent to kill with a hypothetical scenario in which the
defendant “ ‘escalated his mode of attack from a single bullet
aimed at A’s head to a hail of bullets or explosive device.’ ”
(Bland, at p. 330, quoting Ford, at p. 1001.) On such facts, “ ‘the
factfinder can infer that, whether or not the defendant
succeeded in killing A, the defendant concurrently intended to
kill everyone in A’s immediate vicinity to ensure A’s death.’ ”
(Ibid.) Again quoting from Ford, we explained that “ ‘[w]here

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             Opinion of the Court by Cantil-Sakauye, C. J.


the means employed to commit the crime against a primary
victim create a zone of harm around that victim, the factfinder
can reasonably infer that the defendant intended that harm to
all who are in the anticipated zone.’ ” (Ibid.)
       Bland applied what is now commonly referred to as the
“kill zone” theory to uphold the attempted murder convictions in
that case. The record there showed that the defendant and a
fellow gang member approached a car in which a rival gang
member was sitting in the driver’s seat and opened fire with a
.38-caliber handgun, shooting numerous rounds both into the
vehicle and at the vehicle as it drove away. The driver was killed
and his two passengers, who were not gang members, were
wounded. (Bland, supra, 28 Cal.4th at p. 318.) We concluded
that the evidence “virtually compelled” a finding that even if the
defendant primarily intended to kill the rival gang member, he
also, concurrently, intended to kill the passengers in the car, or,
at the least, intended to create a zone of fatal harm. (Id. at
p. 333.)
      Bland’s adoption of the kill zone theory meant that a
prosecutor charging attempted murder in a multi-victim case
had an additional, alternative ground by which to prove the
requisite intent to kill. Under appropriate facts, the prosecutor
could attempt to show either that the defendant’s intent to kill
one or more alleged victims arose independently of his actions
toward any other victim, or that the defendant’s intent to kill an
untargeted victim arose concurrently with his intent to kill a
primary target.
      After the opinion in Bland, this court issued a series of
decisions in which the defendant had been convicted of one or
more counts of attempted murder based on the act of shooting a


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single bullet in the direction of two or more individuals. In each
of these cases, we had occasion to discuss the application of the
kill zone theory and found it either irrelevant or inapplicable to
the facts presented.
      Smith, supra, 37 Cal.4th 733, declined to analyze the
defendant’s sufficiency of the evidence claim under the kill zone
rationale, finding no merit to the defendant’s assertion that all
single-bullet cases involving more than one victim must be
assessed under that theory. Examining the totality of the
circumstances shown by the evidence, our decision in Smith
concluded instead that the defendant was properly convicted of
two counts of attempted murder for having fired at close range
a single bullet at a former girlfriend seated in the front seat of
her car and the infant who was in a car seat immediately behind
her, both of whom were in his direct line of fire. (Id. at pp. 744-
746.)
      In a dissenting opinion in Smith, Justice Werdegar
disagreed that the evidence was sufficient to uphold the
conviction for the attempted murder of the infant. The dissent
concluded that the record did not support the Attorney General’s
argument that the defendant’s firing of a single bullet in the
direction of his former girlfriend created a zone of fatal harm
around her such that it might be inferred that he intended to
ensure her death by killing the infant as well. (Id. at pp. 755-
757 (dis. opn. of Werdegar, J.).)
      Subsequently, in People v. Stone (2009) 46 Cal.4th 131
(Stone), this court agreed with the Court of Appeal that the trial
court should not have instructed on the kill zone theory because
that theory was not implicated in that case. There, the
defendant had been charged with only a single count of


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attempted premeditated murder for shooting at someone who
was standing in a group of 10 rival gang members about 60 feet
away from the defendant. (Id. at pp. 135, 138.) We found the
instructional error on the theory harmless, however, and upheld
the attempted murder conviction, notwithstanding the
prosecutor’s concession that he had not proved that the
defendant specifically intended to kill the victim named in the
charging document. In affirming the judgment, we held that a
defendant who fires into a group of people intending to kill one
of them, but not knowing or caring which one he or she kills, can
be convicted of attempted murder because there is no
requirement that a defendant intend to kill a specific target, so
long as he or she intended to kill someone. (Id. at pp. 139-140.)
We noted that although “difficulties can arise . . . regarding how
many attempted murder convictions are permissible” in some
cases, we were not required to confront that difficulty in Stone
because the defendant there was charged with only one count of
attempted murder. (Id. at pp. 140-141, citing Bland, supra,
28 Cal.4th at pp. 328-329.)
       Finally, in People v. Perez (2010) 50 Cal.4th 222 (Perez),
this court reversed seven of the defendant’s eight attempted
murder convictions that were based on his firing a single shot
from 60 feet away into a group comprised primarily of police
officers who were standing in close proximity to one another. In
examining the defendant’s challenge to his convictions, Perez
considered whether the kill zone theory applied. We concluded
that the nature and scope of the defendant’s attack on the group
had not created a zone of fatal harm around them and that
Bland did not apply. (Id. at p. 232.)
      In the course of concluding that the kill zone theory was
not supported by the evidence adduced at trial, our decisions in

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Stone and Smith briefly summarized the kill zone theory of
attempted murder liability. Stone explained, for example, that
the kill zone theory “addresses the question of whether a
defendant charged with the murder or attempted murder of an
intended target can also be convicted of attempting to murder
other, nontargeted, persons.” (Stone, supra, 46 Cal.4th at
p. 138.) For its part, Smith pointed out that “Bland simply
recognizes that a shooter may be convicted of multiple counts of
attempted murder on a ‘kill zone’ theory where the evidence
establishes that the shooter used lethal force designed and
intended to kill everyone in an area around the targeted victim
(i.e., the ‘kill zone’) as the means of accomplishing the killing of
that victim. Under such circumstances, a rational jury could
conclude beyond a reasonable doubt that the shooter intended
to kill not only his targeted victim, but also all others he knew
were in the zone of fatal harm.” (Smith, supra, 37 Cal.4th at
pp. 745-746.)
       As previously explained, the kill zone theory embraced by
Bland originated from the concept of concurrent intent first
articulated by the Maryland Court of Appeals in Ford, supra,
625 A.2d 984. Ford’s discussion of the concurrent intent theory
was not the basis on which the court resolved the issue
presented in that case, however. Rather, it was dictum in a
discussion eschewing reliance on a transferred intent theory of
liability for inchoate crimes. An earlier decision by the same
court, State v. Wilson (Md. 1988) 546 A.2d 1041 (Wilson), had
applied transferred intent to uphold a conviction for the
attempted murder of a bystander who was shot during the
defendants’ attempt to kill a targeted victim. Ford disapproved
the reasoning of Wilson. But the court in Ford justified Wilson’s
result on the ground that the convictions in Wilson could be


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upheld on a theory of concurrent intent. That is, the record
supported an inference of the defendants’ concurrent intent to
kill both the primary victim and the bystander based on
evidence that the defendants had fired numerous shots toward
both victims. (Ford, at p. 1001.) As Ford explained, the
factfinder could conclude that by attempting to kill their target
by firing multiple bullets from two handguns, the defendants
intended to create a “ ‘kill zone’ ” around the target from which
it could be inferred that the defendants intended to kill everyone
in the direct path of their bullets. (Ibid.) Ford found that the
bystander was “obviously” in the “direct line of fire and the
evidence permitted finding concurrent intent to kill everyone in
the path of the bullets.” (Ibid.)
      In concluding that Wilson correctly upheld the defendants’
attempted murder convictions, the Ford decision spoke in terms
of the victims being in the “direct line of fire.” (Ford, supra, 625
A.2d at p. 1001.) But its description of the concurrent intent
theory, generally, was not so limited. Ford explained that when
“[t]he defendant has intentionally created a ‘kill zone’ to ensure
the death of his primary victim, . . . the trier of fact may
reasonably infer from the method employed an intent to kill
others concurrent with the intent to kill the primary victim.”
(Ibid.)
       A decade after Ford’s dictum, in Harrison v. State (Md.
2004) 855 A.2d 1220 (Harrison), the Maryland Court of Appeals
expressly adopted the concurrent intent theory as a basis of
liability for crimes such as attempted murder. Drawing on
language in Ford, the Harrison decision observed that the
“essential questions” in a concurrent intent analysis focus “on
the ‘means employed to commit the crime [against the primary



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victim]’ and the ‘zone of harm around [that] victim.’ ” (Harrison,
at p. 1230.)
      Justice Werdegar’s dissenting opinion in Smith, supra,
37 Cal.4th 733, applied Harrison’s two-part inquiry to reject the
Attorney General’s argument that the conviction for the
attempted murder of the infant in the car seat could be upheld
under the kill zone theory. Slightly rephrasing that test, the
dissenting opinion asked “(1) whether the fact finder can
rationally infer from the type and extent of force employed in
the defendant’s attack on the primary target that the defendant
intentionally created a zone of fatal harm, and (2) whether the
nontargeted alleged attempted murder victim inhabited that
zone of harm.” (Smith, at pp. 755-756.)
      Harrison’s two-part inquiry, as rephrased in the
dissenting opinion in Smith, accurately reflects this court’s
decision in Bland and the underpinnings of the kill zone theory.
As previously noted, Bland quoted extensively from the Ford
decision, on which Harrison was likewise based. And Harrison’s
inquiry is consistent with the only decision by this court
subsequent to Bland that analyzed the record under the kill
zone theory. In concluding that the kill zone theory did not
apply, we observed in Perez, supra, 50 Cal.4th 222, 232, that
“Bland’s kill zone theory of multiple attempted murder is
necessarily defined by the nature and scope of the attack.”
      The two-part standard for application of the kill zone
theory set forth in Justice Werdegar’s dissenting opinion in
Smith thus provides a helpful basis for a clear and workable
test. But the potential for the misapplication of the kill zone
theory, as evidenced by prior appellate cases, illustrates the
importance of more clearly defining the kill zone theory in future


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cases. The kill zone theory looks to circumstantial evidence to
support a permissive inference regarding a defendant’s intent.
This is not unusual. As we have described on many occasions,
intent to kill often must be inferred from circumstantial
evidence surrounding the crime. (See, e.g., People v. Sanchez,
supra, 63 Cal.4th at p. 457.) And when the prosecution’s theory
substantially relies on circumstantial evidence, a jury must be
instructed that it cannot find guilt based on circumstantial
evidence when that evidence supports a reasonable conclusion
that the defendant is not guilty. (People v. Bender (1945)
27 Cal.2d 164, 175, abrogated on another ground by People v.
Lasko (2000) 23 Cal.4th 101, 110; see also CALCRIM No. 225
[directing jury that circumstantial evidence may support
required intent if “the only reasonable conclusion supported by
the circumstantial evidence” is that defendant had the required
intent, and that jury must conclude intent was not proved when
there are “two or more reasonable conclusions from the
circumstantial evidence, and one of those reasonable
conclusions supports” a determination that defendant did not
have the required intent].) As past cases demonstrate, however,
even when a jury is otherwise properly instructed on
circumstantial evidence and reasonable doubt, the potential for
misapplication of the kill zone theory remains troubling.
         We therefore conclude 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


                                  17
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


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.
      In determining the defendant’s intent to create a zone of
fatal harm and the scope of any such zone, the jury should
consider the circumstances of the offense, such as the type of
weapon used, the number of shots fired (where a firearm is
used), the distance between the defendant and the alleged
victims, and the proximity of the alleged victims to the primary
target. Evidence that a defendant who intends to kill a primary
target acted with only conscious disregard of the risk of serious
injury or death for those around a primary target does not
satisfy the kill zone theory. As the Court of Appeal recently
explained in People v. Medina (2019) 33 Cal.App.5th 146, at
page 156 (Medina), the kill zone theory does not apply where
“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.” We believe our formulation of
the kill zone theory here guards against the potential
misapplication of the theory, and is consistent with Bland and
the general principles discussed above regarding circumstantial




                                  18
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


evidence and the prosecution’s burden of proving each element
of an offense beyond a reasonable doubt.5
       We emphasize that going forward trial courts must
exercise caution when determining whether to permit the jury
to rely upon the kill zone theory. Indeed, we anticipate there
will be relatively few cases in which the theory will be applicable
and an instruction appropriate. Trial 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 a defendant intended to kill
everyone in the zone of fatal harm. The use or attempted use of
force that merely endangered everyone in the area is insufficient
to support a kill zone instruction.
     Relying on language in Stone, supra, 46 Cal.4th 131, the
Attorney General and amicus curiae assert that for the kill zone
theory to apply it is not necessary that the defendant have a


5
      Past appellate court opinions articulating the kill zone
theory are incomplete to the extent that they do not require a
jury to consider the circumstances of the offense in determining
the application of the kill zone or imply that a jury need not find
a defendant intended to kill everyone in the kill zone as a means
of killing the primary target, even if their description of the
theory is otherwise consistent with our opinion here. (See, e.g.,
Medina, supra, 33 Cal.App.5th at p. 170; People v. Stevenson
(2018) 25 Cal.App.5th 974, 985-987; People v. Windfield (2016)
3 Cal.App.5th 739, 754-761; People v. Falaniko (2016)
1 Cal.App.5th 1234, 1243-1244; People v. Cardona (2016) 246
Cal.App.4th 608, 614-615; McCloud, supra, 211 Cal.App.4th at
pp. 798-800.)



                                  19
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


primary target. They have misread our decision. Stone does say
that “[a]lthough a primary target often exists and can be
identified, one is not required.” (Id. at p. 140.) In making that
observation, however, our opinion in Stone was not referring to
the kill zone theory. Indeed, we concluded that the jury there
should not have been given a kill zone instruction because that
theory “addresses the question of whether a defendant charged
with the murder or attempted murder of an intended target can
also be convicted of attempting to murder other, nontargeted,
persons.” (Id. at p. 138, italics added and omitted.) In Stone,
the intent-to-kill element of the attempted murder charge was
established because the evidence supported an inference that
the defendant intended to kill someone in the group. In Smith,
supra, 37 Cal.4th 733, evidence that the defendant discharged a
lethal firearm at two victims who were seated directly in his line
of fire supported an inference that he acted with intent to kill
both victims. (Id. at p. 743.)
      Stone and Smith do make clear there are evidentiary
bases, other than the kill zone theory, on which a factfinder can
infer an intent to kill for purposes of attempted murder liability
that do not depend on a showing that the defendant had a
primary target (for example, when a terrorist places a bomb on
a commercial airliner intending to kill as many people as
possible without intending to kill a specific individual). (Stone,
supra, 46 Cal.4th at p. 140; Smith, supra, 37 Cal.4th at p. 743.)
When the kill zone theory is used to support an inference that
the defendant concurrently intended to kill a nontargeted
victim, however, evidence of a primary target is required. As we
stated in Bland, the kill zone theory is one of concurrent intent
based on a reasonable inference a jury may draw under the facts
of a particular case. (Bland, supra, 28 Cal.4th at pp. 330-331,


                                  20
                        PEOPLE v. CANIZALES
              Opinion of the Court by Cantil-Sakauye, C. J.


331, fn. 6.) As the Court of Appeal correctly observed in Medina,
supra, 33 Cal.App.5th at page 155, “[w]ithout a primary target,
there cannot be concurrent intent because there is no primary
intent to kill as to which the intent to kill others could be
concurrent.”
      Defendant Windfield asserts that CALCRIM No. 600, the
standard instruction on attempted murder that was given in the
case, does not adequately explain the kill zone theory. We agree
that, when a kill zone instruction is legally warranted and in
fact provided, the standard instruction should be revised to
better describe the contours and limits of the kill zone theory as
we have laid them out here.
         1. The kill zone instruction was not sufficiently
            supported in the present matter
      As we shall explain, we conclude that the evidence in this
case was insufficient to warrant the trial court's instruction on
the kill zone theory in connection with the count charging the
attempted murder of Bolden.
      “ ‘It is an elementary principle of law that before a jury can
be instructed that it may draw a particular inference, evidence
must appear in the record which, if believed by the jury, will
support the suggested inference. [Citation.]’ [Citation.]”
(People v. Saddler (1979) 24 Cal.3d 671, 681; accord People v.
Clark (2016) 63 Cal.4th 522, 605.)
       Here, there was substantial evidence in the record from
which it could be inferred that Pride was defendants’ primary
target in the shooting, and no party argues otherwise. Pride was
a known member of Hustla Squad, and Windfield had admitted
to a family friend that on the night in question he and Canizales
had gone to West Jackson to “get a Hustla Squad” gang member


                                   21
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


who had killed his cousin. Moreover, Pride and Canizales had
engaged in a verbal altercation around noon on the day of the
shooting. Finally, the evidence showed that after defendants
and their companions had lined up along Willow Avenue facing
West Jackson Street, where Pride and Bolden were standing
together on the sidewalk, Winfield yelled, “That’s that little
nigga. Bust” — and then opened fire.
      But an instruction on the kill zone theory would have been
warranted in this case only if there was substantial evidence in
the record that, if believed by the jury, would support a
reasonable inference that defendants intended to kill everyone
within the “kill zone.” To qualify, the record would need to
include (1) evidence regarding the circumstances of defendants’
attack on Pride that would support a reasonable inference that
defendants intentionally created a zone of fatal harm around
him, and (2) evidence that Bolden was located within that zone
of fatal harm. Taken together, such evidence would permit a
finding that defendants harbored the requisite intent to kill
Bolden because he was within the zone of fatal harm that
defendants intended to create around Pride.
      The Attorney General argues the evidence is sufficient to
support a reasonable inference that defendants intentionally
created a zone of fatal harm around Pride because, like in Bland,
the five shots Windfield fired at Pride (the primary target) were
enough to kill everyone in that zone. We conclude, however, that
the evidence concerning the circumstances of the attack
(including the type and extent of force used by Windfield) was
not sufficient to support a reasonable inference that defendants
intended to create a zone of fatal harm around a primary target.




                                  22
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


      The Attorney General is correct that in Harrison
Maryland’s high court observed that “courts have permitted an
inference that the defendant created a kill zone when a
defendant . . . fired multiple bullets at an intended target.”
(Harrison, supra, 855 A.2d at p. 1231.) For that proposition,
Harrison described the facts of a number of multiple-shot cases
that involved application of the kill zone theory. For example,
Harrison pointed out that in Wilson, supra, 546 A.2d at page
1042, the defendants had fired “ ‘multiple bullets’ ” from two
handguns. (Harrison, at p. 1231.) Likewise in Bland, supra,
28 Cal.4th at page 331, Harrison observed, the defendant and
his cohort had fired a “ ‘flurry of bullets’ ” at the fleeing car.
(Harrison, at p. 1231.)
       But a closer examination of the decisions relied upon by
Harrison to illustrate its point reveals that the number of shots
fired, although relevant to the inquiry, is not dispositive.
Rather, the number of shots fired is simply one of the
evidentiary factors to consider when assessing whether the type
and extent of the defendant’s attack supports instruction on the
kill zone theory. (See People v. Vang (2001) 87 Cal.App.4th 554,
564 [the placement of the shots, the number of shots, and the
use of high-powered wall-piercing weapons created a reasonable
inference that the defendants intended to kill every living being
inside the residences at which they shot]; see also Washington
v. United States (D.C. Ct.App. 2015) 111 A.3d 16, 24 [the court’s
concurrent intent instruction was supported by evidence that
the defendant stood 21 feet away and fired 10 gunshots at four
people in close proximity to one another, hitting three of them].)
      Notably, in each of the multi-shot cases cited in Harrison,
the defendants opened fire while in close proximity to the area
surrounding their intended target. In Bland, for example, the

                                  23
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


defendant approached the driver’s side of the victims’ car and
started shooting into the vehicle, then fired at the car as it
started to drive away. (Bland, supra, 28 Cal.4th at p. 318.)
Similarly, in Wilson, the defendants engaged in a heated verbal
argument with a man. After threatening to pistol whip him, the
defendants then drew their handguns and opened fire on their
target, missing him but hitting a bystander who was near both
defendants and their target. (Wilson, supra, 546 A.2d at
p. 1042.)
      By contrast, here the evidence at trial showed that
Windfield attacked his target by firing five bullets from a nine-
millimeter handgun at a distance of either 100 or 160 feet away.
Moreover, the attack occurred at a block party on a wide city
street, not in an alleyway, cul de sac, or some other area or
structure from which victims would have limited means of
escape. As Bolden described it, the bullets were “going
everywhere” and “tingling through the gates” as he and Pride
ran down the street away from the gunfire after the first shot
was fired.
      Even accepting as more credible the prosecution’s
evidence that Windfield was 100 feet rather than 160 feet away
from Pride and Bolden when he first fired in their direction, we
conclude that a factfinder could not reasonably infer defendants
intended to create a zone of fatal harm around Pride based on
the record in this case. The evidence presented here showed
that from a substantial distance Windfield shot five bullets in
the direction of a target who immediately ran down a city street
after the first shot was fired. This evidence was insufficient to
support instruction on the kill zone theory.




                                  24
                        PEOPLE v. CANIZALES
              Opinion of the Court by Cantil-Sakauye, C. J.


      We emphasize that the determination whether
substantial evidence supports instruction on the kill zone theory
is based on evidence regarding the circumstances of the attack
on the primary target, from which the defendant’s intent to
create a zone of fatal harm may be inferred.             Such a
determination does not turn on the effectiveness or
ineffectiveness of the defendant’s chosen method of attack. But
whether the inference reasonably could be drawn in this
particular case is at least informed by evidence that neither
Pride nor Bolden was hit by any of the shots fired by Windfield.
This evidence — when viewed in conjunction with evidence
regarding the limited number of shots fired, defendants’ lack of
proximity to Pride, and the openness of the area in which the
attack occurred — further diminishes any inference that
defendants intended to create a zone of fatal harm around Pride.
      Because we conclude that the evidence here is insufficient
to support a finding that defendants intended to create a zone of
fatal harm, we have no occasion to determine the scope of any
such zone given these facts. In cases where substantial evidence
exists to support a finding that the only reasonable inference is
that a zone of fatal harm has been created, the jury is to consider
the circumstances of the attack, including the type and extent of
force used during the attack, to determine the scope of that zone
and whether the alleged victim was within the zone.6

6
      Defendant Canizales additionally argues that an aider
and abettor cannot be held liable for attempted murder under
the kill zone theory because doing so would improperly require
the jury to attribute the shooter’s intent to create a zone of fatal
harm to the aider and abettor. Because Canizales did not raise
this claim until he filed his notice of supplemental authorities,



                                   25
                        PEOPLE v. CANIZALES
              Opinion of the Court by Cantil-Sakauye, C. J.


         2. The error in instructing on the kill zone theory was
            prejudicial
      We have concluded above that there was insufficient
evidence in the record to support the trial court’s instruction on
the kill zone theory. For the reasons provided below, we
conclude that the court’s error in instructing on that theory
requires reversal.
       As previously discussed, the jury was instructed on two
theories of liability in connection with the count charging the
attempted murder of Bolden. The jury was told that it could
return a verdict of guilt on that count if it found either (1) that
defendants intended to kill Bolden specifically, or (2) that
defendants intended to kill Pride and at the same time intended
to kill everyone “in a particular zone of harm or ‘kill zone.’ ” The
Attorney General argues that because the jury could properly
have based the attempted murder convictions of Bolden on the
first theory, the circumstance that the trial court should not
have instructed on the “kill zone” theory because there was
insufficient evidence to support that theory does not warrant
reversal of those attempted murder convictions. The Attorney
General maintains that under this court’s decision in People v.
Guiton (1993) 4 Cal.4th 1116, 1130 (Guiton), the applicable
harmless error standard that applies in this setting is the
ordinary, less demanding standard set forth in People v. Watson
(1956) 46 Cal.2d 818, 836-837, and that under that standard the
trial court error was not prejudicial.
     In support of the application of the Watson standard, the
Attorney General points to our observation in Guiton that when


and because we reverse his attempted murder conviction on
other grounds, we do not address his claim here.


                                   26
                        PEOPLE v. CANIZALES
              Opinion of the Court by Cantil-Sakauye, C. J.


a trial court instructs the jury on an alternative theory that is
improper simply because that alternative theory is not factually
supported by the evidence adduced at trial, the factual
inadequacy is generally something that “the jury is fully
equipped to detect.” (Guiton, supra, 4 Cal.4th at p. 1129.) For
this reason, we stated in Guiton that “instruction on an
unsupported theory is prejudicial only if that theory became the
sole basis of the verdict of guilt; if the jury based its verdict on
the valid ground, or on both the valid and the invalid ground,
there would be no prejudice, for there would be a valid basis for
the verdict. . . . [T]he appellate court should affirm the judgment
unless a review of the entire record affirmatively demonstrates
a reasonable probability that the jury in fact found the
defendant guilty solely on the unsupported theory.” (Id. at
p. 1130.)
       At the same time, however, we also explained in Guiton
that a different prejudice inquiry applies in cases “in which ‘a
particular theory of conviction . . . is contrary to law,’ or, phrased
slightly differently, cases involving a ‘legally inadequate
theory’ . . . .” (Guiton, supra, 4 Cal.4th at p. 1128.) In
determining whether a legally inadequate theory was conveyed
to the jury here, we must ask whether there is a “ ‘reasonable
likelihood’ ” that the jury understood the kill zone theory in a
legally impermissible manner. (People v. Kelly (1992) 1 Cal.4th
495, 525, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.) In
doing so, we consider the instructions provided to the jury and
counsels’ argument to the jury. (See, e.g., People v. Nelson
(2016) 1 Cal.5th 513, 545.)
     In light of the instruction provided to the jury regarding
the attempted murder of Bolden and the prosecutor’s closing
argument, the error here cannot be described merely as the

                                   27
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


presentation of a factually unsupported theory. In relevant
part, the instruction informed the jury that to convict
defendants of attempted murder it must find “[t]he defendant
took a direct but ineffective step toward killing another person”
and “intended to kill that person.” It further explained that “[a]
person may intend to kill a particular victim or victims and at
the same time intend to kill everyone in a particular zone of
harm or ‘kill zone.’ ” The instruction indicated that the People
must prove “that the defendant[s] not only intended to kill
Denzell Pride but also either intended to kill Travion Bolden, or
intended to kill everyone within the kill zone.” Finally, the
instruction directed the jury that if it had “a reasonable doubt
whether the defendant[s] intended to kill Travion Bolden or
intended to kill Denzel Pride by killing everyone in the kill
zone,” it must return verdicts of not guilty. Beyond its reference
to a “particular zone of harm,” the instruction provided no
further definition of the term “kill zone.” Nor did the instruction
direct the jury to consider evidence regarding the circumstances
of defendants’ attack when determining whether defendants
“intended to kill Denzel Pride by killing everyone in the kill
zone.”
      The prosecutor’s description of the kill zone theory given
during closing argument substantially aggravated the potential
for confusion. The prosecutor told the jury that under the kill
zone theory, when a defendant is “shooting at someone and
people are within the zone that they can get killed, then [the
defendant] is responsible for attempted murder as to the people
who are within the zone of fire.” Pointing to Bolden’s testimony
that he was at times in close proximity to Pride, the prosecutor
argued that they were “both within the zone of fire, the range
[of] the bullets that are coming at them.” The prosecutor’s


                                  28
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


definition of the kill zone as an area in which people “can get
killed” or are in a “zone of fire” was significantly broader than a
proper understanding of the theory permits.              Indeed, it
essentially equated attempted murder with implied malice
murder. (See Medina, supra, 33 Cal.App.5th at p. 155 [holding
that allowing the kill zone instruction based on an asserted
natural and probable consequence that anyone within a zone of
harm could die “replaces the specific intent/express malice
required for an attempted murder conviction with conscious
disregard for life/implied malice, which Bland makes clear
cannot support an attempted murder conviction”].) Thus, the
prosecutor’s argument had the potential to mislead the jury to
believe that the mere presence of a purported victim in an area
in which he or she could be fatally shot is sufficient for
attempted murder liability under the kill zone theory. So
misled, the jury might well have found factual support for what
was effectively an “implied malice” theory of attempted murder
without detecting the legal error. (See Guiton, supra, 4 Cal.4th
at p. 1128.)
      In light of these facts, we conclude that there is a
reasonable likelihood that the jury understood the kill zone
instruction in a legally impermissible manner. The court’s error
in instructing on the factually unsupported kill zone theory,
combined with the lack of any clear definition of the theory in
the jury instruction as well as the prosecutor’s misleading
argument, could reasonably have led the jury to believe that it
could find that defendants intended to kill Bolden based on a
legally inaccurate version of the kill zone theory — that is, that
defendants could be found guilty of the attempted murder of
Bolden if Windfield shot at Pride knowing there was a
substantial danger he would also hit Bolden.


                                  29
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


      These circumstances make this case similar to People v.
Green (1980) 27 Cal.3d 1 (Green), a case discussed and analyzed
in some detail in this court’s decision in Guiton, supra, 4 Cal.4th
at pages 1121-1122, 1128-1129. In Green, the defendant was
convicted of charges including first degree murder, kidnapping,
and a kidnapping special circumstance. (Green, at pp. 11-12.)
Under the jury instructions provided, the jury could have based
its kidnapping verdict on any one of three distinct segments of
asportation, including one incident where the victim travelled
only 90 feet. (Id. at pp. 62-63.) In instructing the jury on the
elements of kidnapping, the trial court informed the jury only
that asportation must be “ ‘for a substantial distance, that is, a
distance more than slight or trivial.’ ” (Id. at p. 68.) This court
in Green, after determining that the 90-foot asportation was
“insufficient as a matter of law” to support the kidnapping
conviction (id. at p. 67), held that the instructional error in
permitting the jury to base its verdict on that asportation was
prejudicial and required reversal of the kidnapping conviction
and the related kidnapping special circumstance (id. at p. 74).
       In explaining the reasoning underlying the reversal of the
kidnapping conviction in Green, we observed in our subsequent
decision in Guiton that whereas “a jury would be well equipped
to analyze the evidence and determine whether the victim had
been asported, and to determine the distance of the
asportation[,] [t]he jury would, however, not be equipped to
determine whether, as a matter of law, 90 feet is insufficient. A
reasonable jury, given no specific guidance regarding the
required distance [citation], could have found 90 feet to be
sufficient, and could have relied on that segment of asportation
in its verdict. That being the case, reversal was appropriate.”
(Guiton, supra, 4 Cal.4th at p. 1128.)


                                  30
                        PEOPLE v. CANIZALES
              Opinion of the Court by Cantil-Sakauye, C. J.


      Here, as in Green, the jury was provided an instruction
regarding the kill zone theory but no adequate definition to
enable the jury to determine whether the theory was properly
applicable.    This error was one of federal constitutional
magnitude. (See People v. Lee (1987) 43 Cal.3d 666, 672.) In
Guiton, we did not establish the precise standard of review for
cases governed by Green. (Guiton, 4 Cal.4th at pp. 1130-1131.)
Although we observed that in cases like Green “the general rule
has been to reverse the conviction because the appellate court is
‘ “unable to determine which of the prosecution’s theories served
as the basis for the jury’s verdict” ’ ” (Guiton, at p. 1130), we also
noted that “even this rule has not been not universal.” (Ibid.)
We currently are considering in People v. Aledamat, review
granted July 5, 2018, S248105, whether the appropriate
standard for prejudice in this setting is the test established in
Chapman v. California (1967) 386 U.S. 18 (Chapman), or an
even more stringent test requiring reversal unless there is a
basis in the record to find that the jury actually relied on the
valid theory.
      Here, we need not resolve the question posed in Aledamat
because we conclude that the error in this case was prejudicial
under even the Chapman standard. Applying that test, we ask
“whether it is clear beyond a reasonable doubt that a reasonable
jury would have rendered the same verdict absent the error.”
(People v. Merritt (2017) 2 Cal.5th 819, 831, citing Neder v.
United States (1999) 527 U.S. 1, 18.)          In making that
determination, we examine the entire record. (See Green, supra,
27 Cal.3d at p. 71.) Considering the evidence regarding the
shooting, the prosecutor’s argument, and the jury’s questions
during deliberation, we conclude that the attempted murder
convictions as to Bolden must be reversed.


                                   31
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


      First, although there was strong evidence that Pride was
defendants’ primary target, there was conflicting evidence
regarding whether defendants also intended to kill Bolden
specifically. On the one hand, Detective Williams testified that
Pride indicated to him during a pretrial interview that the
shooter was targeting Bolden, not him. Detective Williams’s
interview with Bolden, when Bolden described his earlier
confrontation with Canizales, likewise suggested that Bolden
believed Windfield was shooting at him. The evidence also
showed Bolden was a member of a rival gang and that
defendants, who were members of the Ramona Blocc gang, were
seeking to retaliate against the Hustla Squad gang for the fatal
shooting of Windfield’s cousin. Taken together, this evidence
indicates that the jury could have concluded that defendants
had the requisite intent to kill Bolden specifically.
       But other evidence leads us to conclude that it is not clear
beyond a reasonable doubt that a reasonable jury would have
come to that determination. Bolden told Detective Williams and
testified at trial that Windfield was not talking about him when
he said, “There goes that little nigga,” because Windfield did not
know him, and that defendant saw Pride, who “gave it away” by
running.7 Bolden testified he thought Windfield was shooting

7
      The exchange between Detective Williams and Bolden
further supports this conclusion: “[Det. Williams]: They was
talkin’ about you? [¶] [Bolden]: They saw Denzel [Pride].
’Cause he the one . . . he was the first one to run! [¶] . . . [¶]
[Det. Williams]: Okay, so you start lookin’ then when you
realized it was them, it was too late for you to tell them [Pride
and the others] . . . [¶] [Bolden]: And plus . . . and plus Denzel
already gave it away when he start runnin’. That’s why
everybody was lookin’ like why he runnin’. And . . . [¶] [Det.



                                  32
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


at Pride because Bolden “would have got hit first” if Windfield
was shooting at him. When Bolden described the gunshots he
stated the bullets were “tingling through the gates” and “going
everywhere” because Windfield could not control his gun. There
was also testimony at trial that Windfield later admitted to a
family friend that “the guy he was shooting at ran and the girl
got in the way.” Based on the evidence alone, then, it is not clear
beyond a reasonable doubt that a reasonable jury would
conclude defendants intended to kill Bolden specifically.
      Next, the jury instructions and the prosecutor’s argument
further support a finding of prejudice. As detailed, both the
prosecutor’s closing argument and the attempted murder
instruction given in connection with the charge involving Bolden
had the potential to cause confusion regarding the application
of the kill zone theory. To be sure, the instructions made clear
there were two theories for finding criminal liability with regard
to the attempted murder of Bolden and plainly informed the jury
that defendants could be liable if they intended to kill Bolden
specifically. The prosecutor also emphasized both theories in
her argument, and strenuously argued the theory that
defendants specifically targeted both Bolden and Pride. That
portion of her argument emphasized that Bolden and Pride’s
gang affiliation provided the motive for the shooting because
defendants were “trying to kill Hustla Squad.” She also
emphasized Bolden’s pretrial statements to Detective Williams
that Windfield was shooting at him as evidence that showed



Williams]: So how did Denzel . . . ? [¶] [Bolden]: . . . that’s
when the gunshots come on.”



                                  33
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


defendants had in fact “shot at both of them.”8 But this does not
overcome the potential for confusion created by the attempted
murder instruction in combination with the prosecutor’s
argument. Taken together, it cannot be said beyond a
reasonable doubt that a reasonable jury would conclude
defendants targeted Bolden specifically.
       The jury’s questions during deliberations are also
instructive. The jury here did not ask questions directed solely
to the kill zone theory or that otherwise suggested it had relied
solely on the kill zone theory to find defendants guilty of the
attempted murder of Bolden. (Cf. In re Martinez (2017)
3 Cal.5th 1216, 1227 [jury’s mid-deliberations note seeking
clarification of the standard instruction on aider and abettor
liability, and the court’s response to that inquiry, suggested that
the jury may have found the defendant guilty of murder based
on the invalid theory that the murder was a natural and
probable consequence of the assaults that preceded the
shooting].) But, as defendants point out, the jury did request a
readback of Bolden’s testimony to the effect that “[t]hey weren’t
shooting at me.” In the portion of Bolden’s testimony that the


8
      The prosecutor argued in full: “Attempt murder goes to
both Count 2 and 3. They tried to kill someone, but they weren’t
successful. . . . And they intended to kill that person. Well,
they’re both Hustla Squad. You have a motive of why they’re
out there. They are trying to kill Hustla Squad, right? [¶] Now
[Bolden] told you very clearly they were shooting at [Pride] but
[Pride] turned around and ran and they’re shooting at him. And
then at one point [Bolden] tells you he runs out and they’re
shooting at him. And you see that in his video statement with
Detective Williams. So they shot — [defendant Windfield] shot
at both of them. That’s why you have a count for each one of the
attempts.”


                                  34
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


jury asked to rehear, the prosecutor asked Bolden whether
Windfield was shooting at him. Bolden answered, “To be honest,
I don’t feel he was shooting at me because I was in front of
[Pride]. . . . But he was shooting our way.” When asked to
confirm that he had told Detective Williams in a pretrial
interview that Windfield was shooting at him, however, Bolden
said he “couldn’t remember that part” but that he “probably did.”
The request for a readback is not dispositive, but it suggests the
jurors at one point were focused on testimony that would have
supported the theory that defendants did not target Bolden
specifically.
       The jury’s findings on sentencing enhancement
allegations are also relevant to our consideration. The Attorney
General asserts that the jury’s true findings as to the allegation
that defendants acted willfully, deliberately, and with
premeditation in attempting to murder Bolden (see §§ 664, subd.
(a) and 187, subd. (a)) show the jury necessarily determined that
defendants acted with the specific intent to kill. The jury could
not have found premeditation and deliberation without also
having determined that defendants had formed the intent to
kill. (See People v. Catlin (2001) 26 Cal.4th 81, 151.) We agree
with Windfield, however, that the true findings regarding the
allegation that defendants acted with deliberation and
premeditation in attempting to murder Bolden do not affect our
determination. As we explained ante, the kill zone theory
permits the jury to infer that the defendant harbored the
requisite specific intent to kill the primary target and everyone
within the zone of fatal harm. Thus, the jury would have found
a specific intent to kill were it to have relied solely on the kill
zone theory of attempted murder liability.



                                  35
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


      Nor are we persuaded that the jury’s true findings
concerning the separate gang enhancement allegation
necessarily leads to the conclusion that the jury did not rely on
the kill zone theory. The jury determined that defendants
committed the attempted murder of Bolden to benefit the
Ramona Blocc gang. Those findings could suggest that the jury
accepted the prosecutor’s alternate theory that defendants
intended to kill both Pride and Bolden because they belonged to
the Hustla Squad gang. But the findings could also suggest
that, relying on the kill zone theory, the jury found that
defendants created a zone of fatal harm in which they intended
all persons would be killed for the benefit of the gang.
      Having examined the entire record, we conclude that it is
not clear beyond a reasonable doubt that a reasonable jury
would have returned the same verdict absent the error.
Reversal is required on the attempted murder counts regarding
Bolden.
     B. Defendants’ challenges to CALCRIM No. 600
      Defendants argue that the paragraph relating to the kill
zone theory in CALCRIM No. 600, the standard instruction
regarding attempted murder given in their case, erroneously
permitted the jury to return a verdict of guilt on the count
charging the attempted murder of the nontargeted victim
without a finding of the requisite element of intent to kill, in
violation of their right to due process. Because we conclude that
the instruction should not have been given and that doing so
prejudiced defendants, we need not reach this separate
constitutional challenge.




                                  36
                       PEOPLE v. CANIZALES
             Opinion of the Court by Cantil-Sakauye, C. J.


                        III. DISPOSITION
     The judgment of the Court of Appeal is reversed as to the
attempted murder convictions regarding Bolden.


                                       CANTIL-SAKAUYE, C. J.




We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                  37
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Canizales
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 229 Cal.App.4th 820
Rehearing Granted

__________________________________________________________________________________

Opinion No. S221958
Date Filed: June 24, 2019
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Steven A. Mapes

__________________________________________________________________________________

Counsel:

Christine Vento, under appointment by the Supreme Court, for Defendant and Appellant Michael Raphael
Canizales.

David P. Lampkin, under appointment by the Supreme Court, for Defendant and Appellant KeAndre Dion
Windfield.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State
Solicitor General, Andrew Mestman, Lise Jacobson and Paige B. Hazard, Deputy Attorneys General, for
Plaintiff and Respondent.

Mitchell Keiter as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Christine Vento
P.O. Box 691071
Los Angeles, CA 90069-9071
(323) 936-5113

David P. Lampkin
P.O. Box 2541
Camarillo, CA 93011-2541
(805) 389-4388

Paige B. Hazard
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2166
