35 Cal. App. 5th 25
Cal. Ct. App. 5th2019Background
- On July 2, 2011, Shane Warner brought an unregistered 9mm Glock into a crowded bar and fired 10 rounds toward I. Smith after a prior physical altercation between them.
- Warner emptied the magazine; Smith was seriously wounded (multiple gunshot wounds); an innocent bystander (N.C.) was also wounded (collapsed lung, bullet in her ID).
- Prosecution charged two counts of attempted murder (Smith and N.C.) and one count of assault with a semiautomatic firearm; jury deadlocked on the attempted murder of Smith (later dismissed), acquitted Warner of attempted murder of N.C. but convicted him of the lesser included attempted voluntary manslaughter as to N.C., and convicted him of assault with a semiautomatic firearm.
- The jury found true enhancements: personal use of a firearm (Pen. Code § 12022.5(a)) and personally inflicting great bodily injury (§ 12022.7(a)). Trial court sentenced Warner to an aggregate term of 22 years (9 yrs + 10 yrs firearm + 3 yrs great bodily injury), staying the attempted voluntary manslaughter sentence under § 654.
- On appeal Warner argued insufficiency of evidence to support attempted voluntary manslaughter/attempted murder of N.C. because the prosecution relied on a "kill zone" (concurrent intent) theory and the jury instruction was improper or unsupported.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supported a "kill zone" inference of intent to kill bystander N.C. | Prosecution: Warner fired 10 rounds across a crowded, semi-dark dance floor toward Smith, creating a lethal zone; jury could infer concurrent intent to kill persons in that zone. | Warner: Evidence did not show intent to kill everyone in the area; no proof of means designed to ensure death of all in the zone (no "near certainty"/overkill). | Sufficient evidence: circumstances (multiple shots, hollow-points, crowd, firing while moving, trajectory) permitted a reasonable jury to infer concurrent intent under kill-zone theory. |
| Whether the CALCRIM kill-zone instruction was legally proper and not unconstitutionally vague | Prosecution: CALCRIM No. 600 correctly states the law and permits the jury to infer concurrent intent. | Warner: Instruction failed to define kill-zone parameters and deprived him of due process. | No error: instruction correctly stated law; no obligation to define physical boundaries; Warner forfeited appellate claim by not requesting clarifying instruction. |
| Whether transferred intent doctrine could supply intent for attempted murder counts | Prosecution: Kill-zone is not transferred intent; it permits inference of concurrent direct intent to kill others. | Warner: Attempted murder requires direct intent to kill each victim; transferred intent does not apply to attempts. | Court affirmed: transferred intent inapplicable, but Bland and progeny allow concurrent intent (kill-zone) inference. |
| Whether remand required because of post-sentencing legislative change (Senate Bill 620) | People sought to retain enhancements; appellate court considered remand after rehearing request. | Warner sought retroactive resentencing discretion under SB 620 to strike the firearm enhancement. | Remanded solely for trial court to decide whether to exercise newly granted discretion to strike the § 12022.5(a) firearm enhancement; otherwise judgment affirmed. |
Key Cases Cited
- People v. Bland, 28 Cal.4th 313 (concurrent intent/kill-zone theory recognized as permissible inference)
- People v. Smith, 37 Cal.4th 733 (kill-zone theory may apply even in single-shot cases when line of fire supports concurrent intent)
- People v. Stone, 46 Cal.4th 131 (single shot at a group may sustain one attempted murder conviction when shooter intended to kill someone in the group)
- People v. Perez, 50 Cal.4th 222 (single-bullet firing at a group can support finding of intent to kill someone in the group but not multiple attempted murders absent further proof)
- People v. McCloud, 211 Cal.App.4th 788 (court questioned broad application of kill-zone theory; emphasized evidence must support intent to kill everyone in area for multiple attempted murders)
- People v. Vang, 87 Cal.App.4th 554 (multiple bullets fired at occupied dwellings sustained attempted murder convictions for occupants)
- People v. Gaither, 173 Cal.App.2d 662 (poisoned candy sent to a household supported attempted murder convictions for multiple residents)
- People v. Cardona, 246 Cal.App.4th 608 (kill-zone instruction improper where no evidence defendant attempted to kill everyone in area; conviction may still stand if jury could infer defendant aimed at bystander)
- People v. Tran, 20 Cal.App.5th 561 (court upheld kill-zone instruction where defendant fired a "hail of bullets," intentionally exposing everyone in vehicle to mortal danger)