‘Kill zone’ prosecutions limited by California Supreme Court

SACRAMENTO — The California Supreme Court has limited “kill zone” prosecutions, where defendants are charged with the attempted murder of people near a crime scene regardless of whether they were targeted or injured.

The justices unanimously decided Monday to overturn kill zone convictions against a gunman and an accomplice in an attack in San Bernardino, the Los Angeles Times reported.

Both defendants were convicted in 2008 of one count of murder and the attempted murders of a rival gang member and a man who was attending a party where the shooting occurred.

The court did not throw out the convictions involving the murder or the attempted murder of the rival but said in its decision the evidence did not support the conviction involving the bystander.

The justices also cautioned trial judges to allow the “kill zone” theory sparingly in the future.

The theory should be used only when there is evidence that a defendant had a specific intent to kill the target and “everyone within the zone of fatal harm,” Chief Justice Tani Cantil-Sakauye wrote for the court.

The deputy attorney general who argued the case could not be reached for comment.

One of the defense lawyers in the appeal estimated that hundreds of defendants in California have been convicted under the kill zone theory since it was adopted in 2002.

Deciding whether a defendant can face such a prosecution will depend on the circumstances of the attack, including the type and extent of force used, and the location of the person who was not the primary target, the court said.

“Trial courts must be extremely careful in determining when to permit the jury to rely upon the kill zone theory,” the court cautioned.

The appeal was filed by Michael Canizales and KeAndre Windfield, who were tried before a single jury on the murder and attempted murder counts..

The trial court gave a kill zone instruction to the jury on the attempted murder charge involving Travion Bolden, a rival gang member who was with the target and who, like the target, was unharmed in the attack.

The jury convicted both defendants of the attempted murder of Bolden, adding 15 years to life to their sentences.

“Even when a jury is otherwise properly instructed on circumstantial evidence and reasonable doubt,” Cantil-Sakauye wrote, “the potential for misapplication of the kill zone theory remains troubling.”