Lead Opinion
Opinion
We granted review to resolve issues involving transferred intent and proximate causation.
In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder. (See generally People v. Scott (1996)
We conclude that transferred intent applies even when the person kills the intended target. Intent to kill is not limited to the specific target but extends to everyone actually killed. We also conclude, however, that the doctrine does not apply to an inchoate crime like attempted murder. A person who intends to kill only one is guilty of the attempted (or completed) murder of that one but not also of the attempted murder of others the person did not intend to kill. Thus, in this case, whether defendant is guilty of the attempted murder of the two. surviving victims depends on his mental state as to those victims and not on his mental state as to the intended victim. Finally, we conclude that the trial court did not prejudicially misinstruct the jury as to these principles.
The jury also found true sentence enhancement allegations that defendant intentionally and personally discharged a firearm and proximately caused
Accordingly, we reverse the judgment of the Court of Appeal, which reversed the attempted murder convictions and enhancement findings.
I. Facts and Procedural History
Defendant was a member of the Insane Crips gang. Murder victim Kenneth Wilson, nicknamed Kebo, belonged to the Rolling 20’s Crips. In the evening of March 6, 1999, Wilson drove through a Long Beach neighborhood with passengers Skylar Morgan and Leon Simon, who, it appears, were not gang members. Stating that he saw someone he knew, Wilson turned his car around and drove to where defendant was standing with another man. The other man pulled out a gun, and defendant asked Wilson if he was Kebo. Wilson said he was, and the man put the gun away.
The other man said he and defendant were Insane Crips. Wilson told them his passengers, Morgan and Simon, were not gang members. Invited to get out of the car and talk, Wilson instead turned his car around again. He said he would drop off his passengers and return. Defendant approached the driver’s side of the car, said, “So you Kebo from 20’s,” and started shooting into the vehicle with a .38-caliber handgun. Wilson managed to start driving away. As he did so, both defendant and the other man fired at the car. The car crashed into a pole. Wilson died of a gunshot wound to the chest. Simon was shot in the liver and Morgan in the shoulder, but both survived. The evidence was not clear who fired the shots that hit Morgan and Simon.
As relevant here, a jury convicted defendant of the first degree murder of Wilson and the premeditated attempted murders of Simon and Morgan. It also found true as to these counts that he “intentionally and personally discharged a firearm and proximately caused great bodily injury ... or death to any person other than an accomplice . . . .” (§ 12022.53(d).) The Court of Appeal reversed the two attempted murder convictions, finding the trial court erroneously instructed the jury on the doctrine of transferred intent. It also reversed the remaining section 12022.53(d) enhancement, finding the court prejudicially erred in not defining proximate causation. Justice Ortega dissented on both points.
We granted the Attorney General’s petition for review.
A. Transferred Intent
1. Procedural Background
One possible interpretation of the evidence is that defendant intended to kill the one he and his cohort did kill—Wilson, the rival gang member—but he did not specifically target nonmembers Morgan and Simon. In his opening argument to the jury, the prosecutor argued that defendant intended to kill Morgan and Simon. But he also argued that “the defendant is actually pointing a gun and pulling the trigger. The intent, as we say in the law, follows the bullet; wherever you are pointing it, that’s where it goes.” In his argument, defense counsel responded that there was no evidence that any of the shots were aimed at Morgan or Simon. In reply, the prosecutor said, “One of the other things counsel said concerning the attempt murder counts . . . one of the instructions talks about that, it is the concept of transfer intent. You don’t get a benefit if you try to kill one person and inadvertently kill another, that that was not your intent. An attempt follows the bullets, kills a different person, the crime so committed is the same as though you originally had given that intended target. The law does not excuse bad marksmanship or hitting other people. He is responsible for each of those acts.”
After the arguments, the prosecution requested that the jury instructions include one on “transferred intent” pursuant to CALJIC No. 8.65. He explained that “the argument of the defense was basically [defendant] didn’t necessarily intend to shoot the other people. And I felt it necessary to respond to that with transfer intent.” The court agreed to give the instruction and thus told the jury: “When one attempts to kill a certain person, but by mistake or inadvertence kills a different person, the crime, if any, so committed is the same as though the person originally intended to be killed, had been killed.” (CALJIC No. 8.65.)
During deliberations, the jury asked the court, “Does finding premeditation in count 1 [murder of Wilson] follow over to count 3 [attempted murder
Outside the jury’s presence, the prosecutor asked the court to reread CALJIC Nos. 8.65, 8.66 (defining attempted murder), and 8.67 (defining the “willful, deliberate, and premeditated” requirements of the attempted murder charges). The court then referred the jury to “three jury instructions that may assist you in reaching a determination. One is 8.65, the other is 8.66, and the third is 8.67. Those are instructions that had been read to you and they are within the packet. If you wish to take a look at those, it may be helpful, [f] With respect to each count, each count is determined separately one from another. So a finding on one does not necessarily lead to a finding on another. It may assist. [U] And, lastly, you are correct in that the finding of the particular factors is in the conjunctive, that is, that you must find all of the factors or you are unable to make the finding.”
The foreperson said the comments helped, and the jury resumed deliberating, eventually reaching its verdict without further communication with the court.
2. The Applicable Law
“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).) Except for the reference to a fetus, the Legislature enacted this statute in 1872 intending to codify the common law of murder. (Keeler v. Superior Court (1970)
In Scott, we upheld convictions of both the murder of an unintended victim who was killed and attempted murder of the intended target, who survived. (Scott, supra,
a. Transferred Intent Applies When the Intended Target Is Killed
In People v. Birreuta (1984)
The Birreuta court cited but found unpersuasive contrary dicta in an earlier case. (Birreuta, supra, 162 Cal.App.3d at pp. 458-459, citing People v. Carlson (1974)
There is some force to Birreuta’s argument that a person who intends to kill two persons and does so is more culpable than a person who only intends to kill one but kills two. But we find no legally cognizable difference between the two persons. Because the facts in Scott did not present the Birreuta question, we “declinefd] to express a view on that decision.” (Scott, supra,
Similarly, a person’s intent to kill the intended target is not “used up” once it is employed to convict the person of murdering that target. It can also be used to convict of the murder of others the person also killed. When one intends to kill and does so, the killing is hardly an accident, even if the
The Birreuta rule presents conceptual difficulties under other facts. Birreuta says that a person who, premeditatedly intending to kill one person, kills the target and an unintended victim is guilty of one first degree murder and one second degree murder or perhaps manslaughter. But what if, instead of killing the target, the same person with the same intent kills two unintended targets? Is that person guilty of two first degree murders or, like the person who kills two, including the target, only of one first degree murder and one lesser crime? Birreuta would seem to permit only one conviction of first degree murder. But if so, how? Is the transferred intent “used up” once it is transferred to one victim? How can that be reconciled with Scott? Moreover, if it is used up, on which of the two unintended victims is it used? Which of the unintended victims, who are equally dead and to whom the person had the same mental state, was the victim of a first degree murder and which of a lesser crime? How can a court make this sensible to a jury?
Justice Mosk’s concurring opinion in Scott, which reached the same result as the majority but by a different, and broader, route, supports the conclusion that Birreuta was incorrect. He rejected the “assumption” that “malice aforethought exists in the perpetrator only in relation to an intended victim.” (Scott, supra,
Whether one conceptualizes the matter by saying that the intent to kill the intended target transfers to others also killed, or by saying that intent to kill need not be directed at a specific person, the result is the same: assuming legal causation, a person maliciously intending to kill is guilty of the murder
Cases from other jurisdictions have not treated Birreuta, supra,
The court then supplied the answer. As we did in Scott, supra,
Relying heavily on Poe v. State, supra,
We conclude that People v. Birreuta, supra,
b. Transferred Intent Does Not Apply to Attempted Murder
“The business of ‘transferring’ the mens rea of a specific intent to kill from an intended victim to an unintended victim (or, more properly, simply applying it to the unintended victim) becomes far more complex when dealing with inchoate criminal homicides such as . . . attempted murder . . . .” (Harvey v. State, supra,
In Czahara, the defendant shot at and injured two persons—Christie and Johnson—for which he was convicted of two attempted murders. The evidence suggested the defendant may have intended to kill Christie but not Johnson. The trial court instructed on transferred intent. The Court of Appeal found the instruction erroneous. It agreed with the authors of a leading treatise who “argue that [transferred intent] should not apply at all to attempted homicides, as the assailant can be punished directly for an attempt on the intended victim: ‘If, without justification, excuse or mitigation D with intent to kill A fires a shot which misses A but unexpectedly inflicts a non-fatal injury upon B, D is guilty of an attempt to commit murder,—but
In Calderon, the defendant shot at and intended to kill one person, but missed and hit instead a nearby child. The child survived. The defendant was convicted of attempting to murder both the intended target and, on a transferred intent theory, the child. The Court of Appeal followed Czahara, supra,
We agree with these decisions. We explained above that intent to kill is not “used up” with the killing of the intended target but extends to every person actually killed. But this rationale does not apply to persons not killed. We see no suggestion the Legislature intended to extend liability for unintended victims to an inchoate crime like attempted murder. The crime of attempt sanctions what the person intended to do but did not accomplish, not unintended and unaccomplished potential consequences.
The mental state required for attempted murder has long differed from that required for minder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. (People v. Lasko (2000)
We should also distinguish between a completed murder and attempted murder regarding transferred intent. Someone who in truth does not intend to kill a person is not guilty of that person’s attempted murder even if the crime would have been murder—due to transferred intent—if the person were killed. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others.
The Maryland Court of Appeals has also considered this question and reached the same conclusion.
In another case, it discussed yet another reason not to apply transferred intent to an inchoate crime like attempted murder. “A related reason why transferred intent cannot properly apply to attempted murder derives from the fact that the crime of attempted murder requires no physical injury to the
This concern is real. The world contains many people a murderous assailant does not intend to kill. Obviously, intent to kill one person cannot transfer to the entire world. But how can a jury rationally decide which of many persons the defendant did not intend to kill were attempted murder victims on a transferred intent theory? To how many unintended persons can an intent to kill be transferred? Just as acts with implied malice constitute murder of anyone actually killed, but not attempted murder of others, so, too, acts with the intent to kill one person constitute murder of anyone actually killed, but not attempted murder of others.
The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. As to the nontargeted members of the group, the defendant might be guilty of crimes such as assault with a deadly weapon or firing at an occupied vehicle. (See Czahara, supra,
The Ford court explained that although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the “kill zone.” “The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity. For example, an assailant who places a bomb on a commercial airplane
California cases that have affirmed convictions requiring the intent to kill persons other than the primary target can be considered “kill zone” cases even though they do not employ that term. In People v. Vang (2001)
This case permits—virtually compels—a similar inference. Even if the jury found that defendant primarily wanted to kill Wilson rather than Wilson’s passengers, it could reasonably also have found a concurrent intent to
The Attorney General argues that not applying transferred intent here would create an anomaly. He notes that, under Scott, supra,
For these reasons, we conclude that the doctrine of transferred intent does not apply to attempted murder. Defendant’s guilt of attempted murder must be judged separately as to each alleged victim.
3. The Law Applied to This Case
In this case, defendant’s intent to kill Wilson does not transfer to Morgan or Simon. This is so, not because defendant killed his intended target, but because transferred intent does not apply to attempted murder. Whether defendant is guilty of attempted premeditated murder of Morgan or
The majority below reversed the attempted murder convictions. It concluded that the trial court, “by referring to the instruction on transferred intent in its reply [to the jury question], led the jury to believe that a finding of premeditation as to the killing of Wilson could be transferred to the wounding of Morgan and Simon.” Justice Ortega dissented. He noted that CALJIC No. 8.65 says only that when a person attempts to kill one person, “but by mistake or inadvertence kills a different person,” the crime is the same as if the intended target had been killed. (Italics added.) He argued that this instruction “could not have been applied by the jury to transfer intent from Wilson to either Morgan or Simon.” Rather its language transferred intent only to a person actually killed. “The instruction,” he argued, “is not one the jury would have had any trouble understanding. It is short, to the point, and uses simple words. I find no possibility the jury could have misapplied the instruction to nonfatal injuries. The instruction uses the words ‘kill,’ ‘kills,’ and ‘killed,’ and says nothing about injuries.” Justice Ortega also argued that, given the strength of the evidence, a jury could not “rationally conclude that defendant did not intend to kill everyone in the car. He was at point-blank range firing at and hitting helpless people. He could not, while using such lethal force, have intended to merely ‘wing’ them or otherwise inflict some sort of nonfatal injury.” We agree with the dissent.
CALJIC No. 8.65, as the court gave it, refers to a mistaken killing, but not to injuries. Although labeled the “transferred intent” instruction, it does not actually use that term. It merely tells the jury, correctly, that if the defendant killed the wrong person, the killing constituted the same crime as if the intended person had been killed. It directly related to this case and properly informed the jury it did not have to determine who, exactly, defendant intended to kill in order to find him guilty of murder. But it did not go further. It did not allow the jury to transfer intent to someone who is only injured.
In Czahara, supra,
The district attorney’s argument to the jury, unlike the later instruction, did suggest the jury could transfer intent to the attempted murder counts. But any uncertainty in this regard was dispelled when, during deliberations, the jury specifically asked whether its finding on premeditation as to Wilson would “follow over” to the attempted murder charge as to Morgan. The court responded, again correctly, that the jury had to “make a determination specifically as to each count, whether you find willful, malicious, premeditation, if you find those as to each count. You make a separate finding. [f| . . . One does not necessarily lead and follow to the other. You have to look at each count separately.” After conferring with the parties, the court additionally referred the jury to the relevant instructions, including CALJIC No. 8.65, and reiterated that “each count is determined separately one from another. So a finding on one does not necessarily lead to a finding on another.”
The question the jury asked the court, and the foreperson’s statements, showed the jury was conscientiously parsing the precise language of the instructions which, in this case, did not transfer intent to a person merely injured. No reason appears to believe this jury would have misread the instruction’s simple language as saying what it did not say. The court also correctly answered the jury’s specific question on this point. Accordingly, we see no reasonable likelihood that the jury understood the charge as permitting it to transfer intent to kill to a person merely injured. Moreover, we agree with Justice Ortega that the evidence here virtually compelled a finding that, even if defendant primarily wanted to kill Wilson, he also, concurrently, intended to kill the others in the car. At the least, he intended to create a kill zone. Contrary to the dissent, we conclude that giving instructions that correctly state the law relating to the case was not prejudicial error.
B. Proximate Causation
Section 12022.53(d) enhances the sentence of anyone who, in the commission of specified felonies including murder and attempted murder
The Attorney General argues the trial court had no sua sponte duty to define proximate causation. We disagree. The court instructed the jury in terms of the statute, which is appropriate if the jury would have no difficulty understanding the statute without guidance. (People v. Estrada (1995)
Even courts and the legal community have struggled with the meaning of proximate causation. “The misunderstanding engendered by the term ‘proximate cause’ has been documented.” (Mitchell v. Gonzales (1991)
To determine whether the error was prejudicial we must decide what instruction the court should have given. CALJIC No. 17.19.5 (2002 rev.) (6th ed. 1996) is the current standard instruction regarding the section 12022.53(d) enhancement, although it did not exist at the time of trial here. It defines proximate causation in terms substantially identical to CALJIC No. 3.40 but adapted to the provisions of section 12022.53(d): “A proximate cause of great bodily injury or death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death would not have occurred.” (Brackets omitted.) The Use Note to CALJIC No. 17.19.5, supra, states, “If there is more than one cause of the bodily injury or death, CALJIC 3.41 should also be given.” CALJIC No. 3.41, in turn, as adapted to the provisions of section 12022.53(d), provides: “There may be more than one cause of the [great bodily injury or death]. When the conduct of two or more persons contributes concurrently as a cause of the [great bodily injury or death], the conduct of each is a cause of the [great bodily injury or death] if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the [great bodily injury or death] and acted with another cause to produce the [great bodily injury or death]. ffl] [If you find that the defendant’s conduct was a cause of [great bodily injury or death] to another person, then it is no defense that the conduct of some other person [, even the [injured] [deceased] person,] contributed to the [great bodily injury or death].]” (Bracketed references to “great bodily injury or death” added to adapt the instruction to § 12022.53(d); other brackets in original.)
The Court of Appeal found CALJIC No. 17.19.5 “is not a proper definition of proximate cause. That instruction would permit a true finding on the enhancement based [on] the cohort’s inflicting the death and injuries and defendant’s aiding and abetting him simply by also firing a gun. The enhancement cannot be found true unless defendant personally fired the bullets which struck the victim. We note that the Attorney General does not contend otherwise.” The Attorney General contends in this court that CALJIC No. 17.19.5 correctly states the law. He argues that “proximately
Citing the Court of Appeal’s statement that “the Attorney General does not contend otherwise” and California Rules of Court, rule 29(b),
We believe that CALJIC No. 17.19.5 does correctly define proximate causation. Section 12022.53(d) requires that the defendant “intentionally and personally discharged a firearm” (italics added), but only that he “proximately caused” the great bodily injury or death. The jury, properly instructed, reasonably found that defendant did personally discharge a firearm. The statute states nothing else that defendant must personally do. Proximately causing and personally inflicting harm are two different things. The Legislature is aware of the difference. When it wants to require personal infliction, it says so. (E.g., Pen. Code, § 12022.7, subd. (a) [imposing a sentence enhancement on a person who “personally inflicts great bodily injury”].) When it wants to require something else, such as proximate causation, it says so, as in section 12022.53(d).
The Court of Appeal considered a similar question in People v. Rodriguez (1999)
The Rodriguez court discussed People v. Cole (1982)
The Court of Appeal here erred in the reverse way. It imputed the personal infliction “concept into a statute when the Legislature left it out.” (People v. Rodriguez, supra,
We also conclude, however, that the error was harmless under any standard. The majority below reversed the enhancement findings because the jury might have found the enhancement true without finding that defendant fired a bullet that struck a victim. However, as we have seen, section 12022.53(d) does not require that the defendant fire a bullet that directly inflicts the harm. The enhancement applies so long as defendant’s personal discharge of a firearm was a proximate, i.e., a substantial, factor contributing to the result.
As noted above, we stated in Mitchell v. Gonzales, supra,
In arguing to the contrary, the dissent contends the jury may have found that the cohort fired his gun first and inflicted the injuries. Assuming that the evidence supported such findings and that those circumstances would prevent a true finding on the enhancement (cf. In re Sergio R. (1991)
We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion.
George, C. J., Baxter, J., Werdegar, J., and Brown, J., concurred.
Notes
The term “transferred intent,” if taken literally, is underinclusive. In his concurring opinion in Scott, Justice Mosk suggested that the term “transferred malice” might be more accurate (Scott, supra,
Some commentators have criticized use of the transferred intent doctrine, although generally not the result. In Scott, we noted that Dean Prosser “aptly describes it [as] a ‘bare-faced’ legal fiction.” (Scott, supra,
Nevertheless, because courts in this state and throughout the nation have long discussed the problem in terms of transferred intent, we think it preferable to continue to use the familiar term, while hopefully clarifying when and how the doctrine does and does not apply. (See in. 1, ante.)
In Ford v. State (1992)
This conclusion does not mean that a person is always liable for all deaths that result from an act with a malicious state of mind. As Justice Mosk noted in Scott, proximate causation is also required for each death. (Scott, supra,
Florida has also refused to extend transferred intent to attempted murder. (Shellman v. State (Fla.Dist.Ct.App. 1993)
This concurrent intent theory is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.
We express no opinion regarding the application of transferred intent to a crime, such as battery, that is not inchoate and does not involve a homicide. (See, e.g., State v. Stringfteld (1980)
Although we find the jury did not misunderstand the instructions in this case, in future cases involving both murder and attempted murder (or manslaughter) charges, it might be better for the court specifically to clarify that transferred intent does not apply to the attempt charges.
The court instructed; “If you find the defendant guilty of murder [or] attempted murder . . . , you must determine whether the defendant intentionally and personally discharged a firearm and proximately caused death, or great bodily injury, as defined in Penal Code section 12022.7 [which the court defined earlier] to Kenneth Wilson, Leon Simon and Skylar Morgan.”
As relevant, that rule provides: “As a matter of policy, on petition for review the Supreme Court normally will not consider: [f] (1) any issue that could have been but was not timely raised in the briefs filed in the Court of Appeal.” (Cal. Rules of Court, rule 29(b).)
Dissenting Opinion
Unlike the majority, I am of the view that the trial court’s failure to properly instruct the jury on the scope of the transferred intent doctrine prejudiced defendant. Nor do I agree that the trial court’s failure to define the term “proximate cause” in connection with the sentence enhancement for “proximately” causing great bodily injury or death was harmless error.
I
Skylar Morgan and Leon Simon, neither of whom was a gang member, testified that on the night of March 6, 1999, they were in Long Beach in a car driven by Kenneth “Kebo” Wilson, a member of the Rolling 20’s Crips street gang. Wilson stopped the car to talk to defendant and another man, both members of the Insane Crips, a rival gang. When defendant asked Wilson if he was “Kebo,” Wilson replied he was, adding that his passengers were not gang members. He said he would drop off his passengers and return. Saying, “So you Kebo from 20’s,” defendant opened fire. As Wilson started to drive away, defendant and his companion fired at the car. Wilson was killed; his passengers, Morgan and Simon, were wounded.
According to Morgan and Simon, it was defendant who started shooting. In a tape-recorded statement to the police that was played to the jury, defendant said his companion, Patrick LeBeau, fired the first shots, after which defendant “just started shooting, too” because LeBeau was his “home boy.” The evidence does not show who fired the shots that hit Wilson, Morgan, and Simon.
Long Beach Police Officer Paul Edwards found a loaded gun on the floor of Wilson’s car between the driver’s seat and the door. The gun was inoperable.
A jury convicted defendant of the murder of Wilson and the attempted murders of Morgan and Simon. As to each count the jury found true a sentence enhancement allegation that defendant had fired a gun and “proximately” caused great bodily injury or death. (Pen. Code, § 12022.53, subd. (d)0
II
In his closing statement, the prosecutor argued that defendant fired at the victims’ car with a premeditated intent to kill passengers Morgan and Simon, but he also argued that even if defendant intended to kill only driver Wilson, the jury could, by applying the doctrine of transferred intent, convict defendant of attempting to kill Morgan and Simon. In his words, “the intent . . . follows the bullet; wherever you are pointing it, that’s where it goes.”
When defense counsel argued there was no evidence that defendant intended to kill Morgan and Simon, the prosecutor told the jury in rebuttal: “[0]ne of the instructions talks about that, it is the concept of transfer [sic] intent. You don’t get a benefit if you try to kill one person and inadvertently kill another, that that was not your intent. An attempt follows the bullets, kills a different person, the crime so committed is the same as though you originally had given that intended target. The law does not excuse bad marksmanship or hitting other people. [Defendant] is responsible for each of those acts.”
After closing argument, the prosecutor asked the trial court to give the jury CALJIC No. 8.65, the standard instruction on transferred intent. He gave this reason: “[T]he argument of the defense was basically he didn’t necessarily intend to shoot the other people [Morgan and Simon]. And I felt it necessary to respond to that with transfer [sic] intent.” The trial court then instructed the jury, “When one attempts to kill a certain person, but by mistake or inadvertence kills a different person, the crime, if any, so committed is the same as though the person originally intended to be killed, had been killed.”
During deliberations, the jury asked the trial court whether a finding of premeditation as to the murder of Wilson would “follow over” to the attempted murder of Morgan. The court responded that the jury had to make a separate determination whether, as to each count, defendant’s acts were willful, malicious, and premeditated. The prosecutor then asked the trial court to direct the jury to consider CALJIC Nos. 8.65 (transferred intent), 8.66 (defining attempted murder) and 8.67 (defining attempted premeditated murder). The court did so, telling the jury: “I will refer you to three jury
The majority correctly holds that the doctrine of transferred intent does not apply to a charge of attempted murder. Thus, if defendant here had acted with a premeditated intent to kill Wilson, but as to Morgan and Simon lacked premeditation or intent to kill, he could not be convicted of the charges of attempted premeditated murder. Nevertheless, the majority concludes that the trial court did not err in giving CALJIC No. 8.65, the instruction on transferred intent. The majority reasons that the instruction discussed only what the jury should do if it were to find that in trying to kill one person, the defendant killed another. This leads the majority to conclude that the jury must have assumed that the instruction pertained only to the charge that defendant murdered Wilson, a crime to which the transferred intent doctrine applies,
The majority’s reasoning is unsound for three reasons.
First, the prosecutor believed that CALJIC No. 8.65, the instruction on transferred intent, applied not only to murder but also to attempted murder: He specifically asked the trial court to give the instruction to counter the defense argument that defendant should not be convicted of attempted murder because he lacked the intent to kill Morgan and Simon. If the prosecutor, a professional trained and experienced in criminal law, incorrectly believed that the instruction applied to attempted murder, it is difficult to fathom the majority’s conclusion that a jury of lay individuals would correctly apply to the facts in this case the complex legal principles contained in the instruction on transferred intent.
Second, although the majority is right that the instruction on transferred intent applies to a charge of murder, here the facts did not warrant applying the instruction to the murder of Wilson. To apply the instruction to the Wilson murder, the jury would have had to believe that defendant intended to kill Morgan and Simon, who were wounded, but that he did not intend to
Third, in closing argument the prosecutor did not ask the jury to apply the instruction on transferred intent to the charge of murder of Wilson. Instead, he argued that it applied to the two counts of attempted murder when responding to the defense argument that defendant was not guilty of those charges because he did not intend to kill Wilson’s two passengers, Morgan and Simon.
That the jury must have applied the doctrine of transferred intent to the charges of attempted murder follows from its question to the trial court, during deliberations, whether a finding of premeditation as to the murdered Wilson would “follow over” to the wounded Morgan. One can reasonably conclude that the jury did not inquire about defendant’s intent to kill Wilson, because it believed it already knew the answer: that under CALJIC No. 8.65, it could transfer that intent to Morgan and Simon, the two alleged victims of attempted murder.
The trial court’s directive to the jury to reread CALJIC No. 8.65, the instruction on transferred intent, must have reinforced, albeit erroneously so, the jury’s belief that it should apply that instruction to the charges of attempted murder, as the prosecutor, in closing argument, had asked the jury to do.
The trial court’s instruction on the doctrine of transferred intent was ambiguous. Not at all clear was whether it applied only to the charge of murder of Wilson, or whether it also applied to the attempted murder charges pertaining to the injured Morgan and Simon. When a trial court’s instructions are ambiguous, a reviewing court must determine whether there is “a reasonable likelihood that the jury misconstrued or misapplied the words” of the instruction. (People v. Clair (1992)
The majority cursorily concludes that any instructional error was harmless because “the evidence here virtually compelled a finding that, even if defendant primarily wanted to kill Wilson, he also, concurrently, intended to kill the others in the car” because he “intended to create a kill zone.” (Maj. opn., ante, at p. 333.) Not so. Defendant had a motive to kill Wilson because he knew the latter to be a member of a rival gang, but Wilson’s two
Ill
Subdivision (d) of Penal Code section 12022.53 provides that any defendant who, in the commission of specified felonies, “intentionally and personally discharged a firearm and proximately caused great bodily injury ... or death, to any person other than an accomplice” (italics added) must be sentenced to a term of 25 years to life in prison. The trial court here instructed the jury on this sentence enhancement but did not define the term “proximately” for the jury. I disagree with the majority that the trial court’s failure to do so was harmless error.
In support of its conclusion, the majority quotes this statement by a majority of this court in Mitchell v. Gonzales (1991)
In Mitchell, this court described an experiment, conducted as part of “a scholarly study of 14 jury instructions,” in which “ ‘the term “proximate
CALJIC No. 17.19.5 (2002 rev.) (6th ed. 1996) correctly defines a proximate cause of great bodily injury or death as “an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death would not have occurred.” That is how the trial court in this case should have instructed the jury. If the jury had been so instructed, could it have had a reasonable doubt as to whether defendant “proximately” caused not only Wilson’s death but also the injuries to Morgan and Simon? The answer is “yes.”
If defendant did fire the bullets that struck the three victims, it necessarily follows that he “proximately caused great bodily injury ... or death.” (Pen. Code, § 12022.53, subd. (d).) But both defendant and his companion fired shots, and the evidence does not show whose shots caused the injuries. Thus, the jury could not have found beyond a reasonable doubt that defendant shot the three victims. Even if defendant’s accomplice was the one who shot them, defendant proximately caused their injuries if he “set[] in motion a chain of events” that as a “direct, natural and probable consequence,” led to the shooting. (CALJIC No. 17.19.5.) That scenario would have required defendant to shoot first, with his accomplice following suit. It is not at all clear, however, who fired first. Morton and Simon testified it was defendant. But defendant, in a tape-recorded statement to the police that was played at trial, claimed it was his companion who began the shooting and defendant then joined him in support. Under this scenario, if the accomplice’s bullets rather than defendant’s struck the three victims, defendant did not proximately cause their injuries, because the accomplice started shooting on his own initiative, not in response to an act by defendant.
Because of these conflicting accounts, the jury may have been uncertain who fired first and whose shots hit Wilson, Morton, and Simon. Given that uncertainty, the jury, had it been properly instructed on the meaning of proximate cause, might well have decided that it could not find beyond a reasonable doubt that defendant proximately caused great bodily injury or death to the three victims. Thus, the trial court’s failure to define that term was prejudicial error. (See Chapman v. California, supra,
For the reasons given above, I would affirm the judgment of the Court of Appeal, which reversed defendant’s convictions for attempting to murder Morgan and Simon and also reversed the sentence enhancements for use of a firearm that proximately caused the death of Wilson as well as the injuries to Morgan and Simon.
Moreno, J., concurred.
English courts have applied the transferred intent doctrine to murder for over four centuries. (See The Queen v. Saunders & Archer (1576) 75 Eng.Rep. 706, 708.) For almost a century, this court has consistently held that the doctrine applies to California’s murder statute. (See People v. Scott (1996)
In Mitchell, I disagreed with the majority’s disapproval of BAJI No. 3.75, a standard jury instruction defining proximate cause. (See Mitchell v. Gonzales, supra, 54 Cal.3d at pp. 1056-1062 (dis. opn. of Kennard, J.).) The majority’s observation there that jurors are likely to misunderstand the term “proximate cause” unless its meaning is defined for them was not a point of disagreement.