*1 July S097340. 2002.] [No. PEOPLE, and Respondent,

THE Plaintiff BLAND, and Appellant. K. Defendant JOMO *4 Counsel Court, Defend- for Christiansen, Supreme L. under appointment

Mark ant Appellant. Pollack, P. Druliner General, David Carol Wendelin Lockyer, Attorney

Bill General, Marc E. Anderson, Attorneys Chief Assistant and Robert R. Hamanaka, General, Assistant Turchin, Pamela C. Assistant Acting Attorney Hill, General, Deputy Attorneys and Noah P. John R. Attorney Gorey General, for Respondent. Plaintiff and

Opinion intent

CHIN, involving resolve issues transferred J. review to We granted causation. proximate form, intent when the applies In its classic the doctrine kills another. mistakenly defendant intends kill one person to kill the is to the unintended victim so deemed transfer target Scott guilty (See generally People defendant murder. its 14 Cal.4th 544 927 P.2d Whatever (Scott)) Cal.Rptr.2d 288] conceptual theoretical this result is But universally accepted. underpinnings, Here, defendant difficulties arise when the doctrine to other facts. applying three but not the other killing, shot at two. persons, killing injuring, *5 A murder and two degree convicted him of one first jury premeditated kill intent to the murders. We must decide whether defendant’s attempted victim to an murder victim. murder transfers alleged attempted kills the even when applies person We conclude Intent kill is limited but extends specific target not to target. conclude, however, that We the doctrine everyone actually killed. also A does not to an inchoate crime like murder. who attempted person apply murder of (or intends one is of guilty attempted completed) did not that one but not also murder of others attempted case, Thus, of the guilty intend to kill. this whether defendant victims on his mental state as those depends surviving two. Finally, as to the intended victim. we victims and not on his mental state as to did misinstruct the jury conclude that trial court not prejudicially these principles. that defendant found true sentence enhancement allegations also caused a firearm and

intentionally discharged proximately and personally 12022.53, Code, or death. great bodily injury (Pen. subd. hereafter (d); § section The trial court 12022.53(d).) instructed the elements this but not define allegation, did causation. We proximate conclude court defining causation, erred not the error proximate was harmless. A correct instruction on causation not have proximate could aided defendant.

Accordingly, we reverse of the Court of judgment which Appeal, reversed the convictions and enhancement findings. History

I. Facts and Procedural Defendant was a of the member Insane Murder Crips gang. victim Ken- Wilson, Kebo, neth nicknamed to the 20’s belonged Rolling In the Crips. evening March Wilson drove a Long Beach through neighbor- Simon, who, hood with and Leon passengers Skylar Morgan appears, were knew, members. gang Stating that saw someone he Wilson turned his car around and where drove to defendant standing was another man. The other man a gun, out and defendant asked Wilson if he pulled was Kebo. was, Wilson said he the man away. and put gun The other man said he and defendant were Insane Wilson told them Crips. his Simon, passengers, Morgan and were not members. gang Invited to get talk, out car and car Wilson instead turned his around again. He said he would off his and Defendant drop return. passengers approached car, said, 20’s,” driver’s side of the “So and you Kebo from started shooting into the vehicle with a .38-caliber handgun. managed Wilson start driving so, As he did man away. both defendant and the other fired at the car. The car crashed into a died of a wound to pole. gunshot Wilson the chest. Simon shoulder, shot in the liver and in the but both Morgan survived. The evidence was not clear fired the shots that hit Morgan who Simon. here,

As relevant the first convicted defendant of degree murder and the of Simon Wilson murders It premeditated attempted Morgan. found also true as to these counts that he “intentionally personally *6 a discharged firearm caused or proximately great bodily injury and ... to . any death other than an . . .” The person accomplice (§ 12022.53(d).) convictions, of the Court reversed two murder the Appeal finding trial court instructed the on the doctrine of erroneously enhancement, intent. It also reversed the section remaining 12022.53(d) the finding defining court erred not causation. prejudicially proximate Justice both Ortega dissented on points. granted Attorney

We the General’s for review. petition

II. Discussion A. Intent1 Transferred Procedural Background

1. intended to is that defendant of the evidence interpretation One possible kill—Wilson, the member—but gang rival kill the one he his cohort did and his open- Simon. In nonmembers and Morgan he not specifically target did intended to that defendant to the the ing prosecutor argued argument jury, is actually that “the defendant kill But also Morgan argued and Simon. law, intent, in the say the as we gun pulling trigger. pointing it, In his bullet; that’s where goes.” the are you pointing follows wherever that of any that there was no evidence defense counsel argument, responded said, the In Morgan reply, prosecutor shots were aimed at or Simon. counts attempt said things concerning “One of other counsel that, it is of transfer concept . talks about . . one the instructions if to one inadvertently You a benefit kill get you try intent. don’t bullets, another, intent. An follows the your that that not attempt though you committed is the same as kills a different the crime so person, law not excuse bad intended does target. had that originally given He for each of those responsible other is hitting people. marksmanship acts.” instructions

After the arguments, prosecution requested to 8.65. He one “transferred intent” CALJIC No. pursuant include didn’t argument basically that “the the defense was explained [defendant] felt it to necessary to other And I necessarily intend shoot people. the instruction transfer intent.” The agreed give that with court respond kill a person, thus told the certain jury: attempts “When crime, if so any, or inadvertence kills a different mistake person, killed, to be committed is the same though person originally No. had been killed.” (CALJIC 8.65.) court, deliberations, the asked “Does

During finding premedita- [attempted tion in count 1 follow over count [murder Wilson] intent,” literally, concurring if underinclusive. his term “transferred taken is 1The Scott, might malice” be more opinion suggested that the term “transferred Justice Mosk Mosk, term is too (Scott, supra, 14 Cal.4th at p. (cone. opn. J.)), but even that accurate guilty killing wrong person premeditates but kills narrow. Someone who intentional, (People v. (2001) 26 Cal.4th 850-851 Sanchez premeditated, just murder. designation might 209].) be “transferred Cal.Rptr.2d 29 P.3d A more accurate However, in the “transferred intent” is so well established mental state.” because term cases, understanding merely it is not to intent but it on the limited we will continue use *7 premeditation. at least extends 320 court, Morgan]?” open three, said that count foreperson regarding willful,

“We seem unable to be and distinguish deliberate premedita- tion. . . . see it is quite that willful clearly and deliberate but possibly [W]e the word ‘and’ is because causing problem we are [in instruction] as a having establishing that there is in difficulty group that premeditation particular count 3.” The court that had to “make a explained distinct for each count where finding 1, that arises. It in counts 2 question arises and 3. So what will need you to do is make a determination as to specifically count, willful, each malicious, whether you find if premeditation, you find those as to each count. find, You make a You separate for finding, may [f] instance, 1, that it . applies . . as to count find you that there are may 1, some facts or distinction 2 between count count 3 in and count which you don’t find all of those factors existent. That’s that. One okay do does not lead and follow to other. necessarily You have to look at each count separately.”

Outside the jury’s presence, the prosecutor asked court to reread 8.65, CALJIC Nos. 8.66 and (defining attempted 8.67 murder), (defining “willful, deliberate, of the premeditated” requirements The court then charges). referred the to “three jury instructions that in 8.65, assist you reaching a determination. One is the other is 8.66, and the third 8.67. Those instructions are that had been read to you those, are within the If wish to they packet. take a look at you bemay count, helpful, With to each each respect count is determined separately [f] one from another. So a does not finding necessarily lead to a finding And, on another. It may assist. are in lastly, you correct that the finding [U] is, particular factors is conjunctive, you must find all of the factors or are unable to you finding.” make said the helped, comments resumed foreperson deliber- without further ating, reaching its verdict communication eventually with the court.

2. The Law Applicable fetus, “Murder is the unlawful of a human being, with malice killing Code, 187, aforethought.” subd. for reference to (Pen. (a).) Except § fetus, the enacted Legislature this statute intending codify common of murder. 619, law Court Cal.3d (Keeler Superior (1970) 481, 617, 624-625 Cal.Rptr. 470 P.2d A.L.R.3d Transferred 420].) intent was one the common law doctrines that “survived enactment of California’s murder statute.” Cal.4th at (Scott, citing p. People Suesser Cal. P. 366-367 “Under the 1093].) *8 transferred doctrine of common law of California’s classic formulation and hits certain the intent to kill a person shoots with intent, a defendant who that would have liability criminal is to same subject instead bystander ’ ‘ intended.” for whom reached “the fatal blow been had imposed . In such a P. . . .) Cal. v. Suesser (1904) 1093] (People [75 if he had accom- as culpable is deemed the defendant setting, factual at p. 546.) set out do.” (Scott, what plished of an unintended of both murder Scott, we convictions In upheld who target, of the intended killed murder attempted victim who was and Here, reverse oc- arguably, 14 Cal.4th 544.) (Scott, supra, survived. did not kill intended and wounded but target Defendant killed his curred: Thus, applies transferred intent is whether question unintended victims. kills his sole intended the defendant when charges cases the briefs and have Although does not kill others. target and shoots but distinct we have two single actually this as a generally analyzed question, an an intent kill transfer to best Does questions analyzed (1) separately: transferred is killed? Does (2) victim when the intended target unintended intent murder? apply Killed Is

a. Intent Intended Applies Target When Transferred Cal.Rptr. In 162 Cal.App.3d v. Birreuta People 635] first murders. He degree the defendant convicted of two (Birreuta), kill one of the victims. court instructed denied intending erroneous, the instruction intent. The found transferred Court Appeal is target does apply transferred intent when reasoning to insure the “The of the transferred intent doctrine is killed. function kill innocent accidentally bystanders, of those who adequate punishment their intended victims. But for failing while to kill murder, though doctrine, they such for even escape punishment could people their mis ‘lucky’ and killed—because deliberately premeditatedly however, killed, there is no need the intended victim is take. ... When deliberation, premeditation, for an artificial doctrine. The defendant’s such in the kill are all aforethought directly employable intent to and malice killing may The accidental murdering for his intended victim. prosecution without degree thus as a or second manslaughter be prosecuted mental elements of the situation. ... We most ignoring culpable [H] best by differentiating that the are served justice conclude interests killers two deliberately people, who premeditatedly between kill another. Both accidentally to kill one person, killers who intend but the former type clearly for both killings, should be types punished more culpable. situation, the first the killer has committed two intended *9 first degree murders. In the second situation ... the killer has committed one first murder degree and one second degree murder If manslaughter. the transferred intent doctrine is applicable when the intended victim is killed, this difference disappears. we hold that the Accordingly, transferred intent doctrine does not apply this case because ... the intended victim . .. was killed.” at (Id. pp. 460-461.)

The Birreuta court cited but found unpersuasive dicta in an contrary earlier case. (Birreuta, supra, 458-459, at Cal.App.3d pp. citing People v. Carlson Cal.App.3d 349 Carlson, Cal.Rptr. 321].) defendant was convicted of voluntary manslaughter of his wife and murder of the fetus she was The carrying. court “If, applied intent. under evidence, defendant intended to kill his wife but accident or inadvert ence he child, killed the unborn the proper to be principle is that applied ” which operates under the doctrine of ‘transferred intent.’ v. Carl (People son, supra, 37 at Cal.App.3d The p. 356.) court had “no doubt that the doctrine of ‘transferred intent’ even applies though original object assault is killed as well as the whose death person was the accidental or the unintended result of the intent to kill the former.” at This (Id. p. 357.) was, language noted, as Birreuta dicta because the Carlson court ultimately reversed the murder conviction on unrelated grounds. at (Id. pp. 357-358.)

There is some force to Birreuta’s argument that a person who intends to kill two and does persons so is more than a culpable who person 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 Birreuta question, we express view that decision.” (Scott, “declinefd] supra, Cal.4th at p. But Scott is 552.) instructive. There we affirmed convictions of two crimes against victims based separate on an intent to and, kill—attempted on a transferred intent theory, murder—even though defendant have kill We person. rejected intended the defendant’s argument that tie was improperly “being as if he prosecuted intended to kill two rather than one.” people (Id. at p. 551.) “Contrary what its name implies, transferred intent doctrine does not refer to any actual intent that is capable ‘used once it being up’ is employed to convict a defendant of a intent crime specific against intended victim.” at (Id. p. 550.)

Similarly, person’s the intended is not target “used up” once it is to convict employed person It can murdering target. also be used to convict of the murder of others the also killed. When one so, intends to kill and does accident, is killing an if hardly even Birreuta, (Cf. are unintended. or victims victim specific bystand- innocent “accidentally kill[ing] 460 [referring Cal.App.3d p. when transfer intent is no need to court believed there Birreuta ers”].) can be convicted the defendant is killed because target It dispositive. may is not But this (Ibid.) point intended victim. persons actually kill extends to all to find that intent to be necessary so. killed, to do but we believe appropriate facts. Bir- difficulties under other conceptual Birreuta rule presents *10 to kill one who, person, intending reuta that a says premeditatedly person first of one murder degree the an unintended victim is target guilty kills if, But instead or what manslaughter. and one second degree perhaps two unin- the the the same intent kills of same with killing target, person or, like the that of first murders targets? degree tended Is two person guilty first two, the of one including target, only degree who kills person of only lesser Birreuta would seem to one conviction permit crime? so, if intent once up” first murder. But how? Is the transferred “used degree Scott? it one victim? can that be reconciled with is transferred to How Moreover, if it victims is used? is used on which of the two unintended up, victims, the of the are dead and to whom Which unintended who equally state, had the the of first murder and degree same mental victim a person a can a make this sensible to a jury? which of lesser crime? How court Scott, the Justice Mosk’s in which reached same result concurring opinion different, broader, route, as the the conclusion majority by supports that Birreuta He the that “malice rejected “assumption” was incorrect. in the in to an victim.” aforethought exists relation intended perpetrator only Mosk, Instead, 555 14 Cal.4th at (Scott, supra, p. opn. J.).) (cone. malice, or “does exist argued, express implied, perpetrator either True, intent kill almost in relation to an intended victim. an unlawful is an . . . there no to be directed at intended victim. But always happens intent to kill an victim. The law speaks an unlawful intended requirement of an to kill not the intended to be terms unlawful intent a person, Code, ‘express that malice is aforethought killed. Pen. 188 (See [providing § away when there is intention to take unlawfully manifested a deliberate life . . . .)” (Id. pp. 555-556.) fellow creature’] to kill the the matter that intent by saying

Whether one conceptualizes killed, or intent saying intended transfers to others also target by is the assuming not be directed at result same: person, need specific causation, kill is of murder legal maliciously intending guilty a person 324

of all killed. If is persons actually the murder or premeditated, murders are degree.2 first Birreuta,

Cases jurisdictions from other have not supra, treated 162 (State 454, Cal.App.3d kindly. Several have with expressly it. disagreed Hinton 598-599]; Ochoa v. State 593, 227 Conn. 301 A.2d (1993) [630 1201, v. Worlock 1204-1205]; State (1999) Nev. P.2d (1990) [981 State v. Fennell 1314, 117 N.J. A.2d 1325]; S.C. 266 Scott, S.E.2d supra, citing 14 Cal.4th with 515-518] [but The three later approval].) each the New opinions quote approval Jersey Supreme Court: “When a defendant or contemplates designs death of another, deterrence better purpose holding served that defendant responsible for murder of the knowing purposeful unintended as well Hence, as the intended victim. reject argument we defendant’s successful killing prevents victim ‘transfer’ that intent Worlock, an victim.” (State unintended A.2d at p. 1325.) Connecticut Court “the added that law does not Supreme give defendant a discount on the second and victims of his intentional conduct.” subsequent *11 (State Hinton, v. supra, Birreuta 630 A.2d at Other cases p. 598.) predated but reached the opposite (United States v. Sampol (D.C. conclusion. Cir. 621, 636 1980) F.2d 674 are even for stronger grounds the applying [“There the principle where intended victim is killed the same by [transferred intent] United Weddell act that States v. victim”]; kills the unintended Cir. (8th 767, 1977) 567 F.2d 769-770.)3 doctrine, although gener 2Some have criticized the transferred intent commentators use of Scott, ally not it “aptly the result. In we noted that Prosser describes a Dean ‘bare-faced’ [as] 550, Prosser, legal citing (Scott, supra, fiction.” 14 p. (1967) Cal.4th at Intent 45 Transferred Mosk, 650, 650; Scott, p. (cone. Tex. supra, opn. J.) [describing L.Rev. see also at it Perkins, critic, as peculiarly legal fiction”].) perhaps “a the mischievous doctrine’s harshest argues proper place that it law” because it the vice being “has no in criminal “has half-truth, result,

misleading given improper incapable often reason for a correct but an 7, 8, application.” (Perkins Boyce, (3d 1982) p. 921.) strict & Law ed. Criminal ch. § Nevertheless, throughout long courts in the because this state and nation have discussed the intent, problem in it preferable terms of transferred we think to continue to use the familiar term, clarifying hopefully apply. (See while the doctrine does when and how and does in. 1, ante.) 984], 3In (1992) Maryland Appeals Ford v. State 330 Md. 682 A.2d the Court of cited [625 Birreuta, 454, but, supra, Cal.App.3d as we the next approval subpart, discuss in that question an presents applies decision the whether transferred intent to inchoate crime like not the same court that it murder and Birreuta issue. The later said “stated in Ford (Poe (1996) apply that transferred intent does not murder.” v. 341 Md. 523 State Scott, 544, [presenting A.2d as in 14 Cal.4th supra, the same issue 504] deciding way].) signed justices disagreed A concurring opinion by it the same in Ford three holding. State, (Ford pp. (cone. opn. with Birreuta’s 625 A.2d at supra, 1004-1005 McAuliffe, J.).) A.2d in State Harvey Md.App. The court 628] difficul- conceptual first the this in detail. It discussed considered question of the and simplistic, explanations ties of the early, it “Some presents. conceptual to some troubling problems. intent doctrine rise gave actus reus—the death single The classic formulation envisioned intent to the If mens rea—the single specific unintended victim. the victim, to the unintended victim, then be ‘transferred’ e.g.—could rea actus reus to unitary produce mens could combine with unitary arithmetic simple crime. . . . unitary doctrinally tidy [f] however, there more than one explanation proved inadequate, when victim, reus. in addition to death of unintended actus Suppose, least, its or, at wounded the bullet in by intended victim had also been killed rea to be the crime the intended against If mens had used flight. prove victim, involving then ‘transferred’ to the case what was left be also arose even where conceptual problem unintended victim? The the State nonetheless force the intended missed victim deadly completely intent to murder or with the inchoate crime of charge assailant sought rea in limited supply, with intent to murder. If the mens were assault mens rea be single of two crimes it be How could a which should allocated? (Id. to do made double duty?” pp. 636-637.) Scott, As 14 Cal.4th The court then answer. we did supplied it transferring up. thinking the notion that uses rejected “By mens unit must be rea such finite terms—as some discrete here either or have created for ourselves linguistic problem there—we inchoate, acts, where no real-life existed. Criminal consummated problem rea, are A mens discrete events can be both counted. pinpointed *12 follows, contrast, It neither nor fails to is an elastic of unlimited thing supply. of the It It in the brain go bullet. does remains anywhere. follow criminal It with a actus reus to may single actor and never moves. combine rei, acti make a crime. It as combine with a hundred single may readily unintended, crimes, and to make a hundred consummated intended the criminal acts for may multiply inchoate. Unforeseen circumstances mind, however, single which criminal is A state agent responsible. v. the level of them all.” guilt (Harvey will control the fact of guilt State, A.2d 681 supra, p. 637.) State, 501—Maryland’s v. 671 A.2d supra, Poe

Relying heavily Scott, that “the 14 544—the court concluded Cal.4th equivalent supra, victim was his the unintended guilt (or assailant vis-a-vis accomplice) As far the case respect the fate the intended victim. unaffected concerned, no unintended victim was it made difference whether missed, wounded, hit but victim had been aimed at 1) 2) intended 326 hit and It 3) killed. made no difference similarly whether the assailant

(and/or had been accomplice) with a crime charged against victim or not. There was no danger the mens depleting rea. [fj ‘transferred’ mens rea vis-á-vis the unintended victim or victims will not be affected in therefore, any way, by what to the happens intended victim.” State, v. (Harvey 681 supra, A.2d at p. 637.) We Birreuta, conclude that v. People 454, 162 supra, Cal.App.3d incorrect and it to disapprove the extent it is inconsistent with our opinion. Intent to kill transfers to an unintended homicide victim even if the intended target killed.4

b. Intent Does Not Apply Murder Attempted Transferred

“The business of the mens rea ‘transferring’ of a intent to specific kill from an intended victim to an unintended victim more (or, properly, simply it to applying the unintended victim) becomes far more complex when dealing with inchoate criminal homicides such as . . . attempted murder . . State, . .” v. (Harvey 681 A.2d at p. Two California 639.) decisions have concluded that transferred intent does not apply attempted murder. v. (People Czahara 1468, (1988) Cal.App.3d 1471 [250 Cal.Rptr. v. (Czahara); People Calderon 930, (1991) 836] Cal.App.3d Cal.Rptr. see (Calderon); also v. People [283 Chinchilla (1997) 833] 683, Cal.App.4th Cal.Rptr.2d 761], citing Czahara with approval.) [60 These cases disagreed with earlier assumed, decisions that without analysis, that transferred intent does apply murder. (People Flores 178 Cal.App.3d 80-82 465]; Cal.Rptr. People Neal (1950) 97 Cal.App.2d 672-673 P.2d 556].) Czahara, the defendant shot at and injured two persons—Christie and Johnson—for which he was convicted of two attempted murders. The evi- dence suggested the defendant have intended to kill Christie but not Johnson. The trial court instructed on transferred intent. The Court of Appeal found the instruction It erroneous. with the agreed authors of a leading treatise who “argue should not at all to apply [transferred intent] homicides, as the assailant can be punished for directly an attempt *13 on the ‘If, intended victim: justification, without excuse or D mitigation with intent to kill A fires a shot which A misses but inflicts unexpectedly a B, non-fatal D injury upon is of an guilty murder,—but to commit attempt 4This conclusion person does not mean that a always is liable for all deaths that result from an act Scott, with a malicious state of mind. As Justice proximate Mosk noted in causation is also required (Scott, 556, for each supra, Mosk, death. 14 p. (cone. Cal.4th at 1 opn. J.); fn. generally see People (2001) 148, Cervantes 26 Cal.4th Cal.Rptr.2d 860 225].) P.3d 29

327 kill not B who was to and trying A D was to murder whom the was attempt there is no is concerned far the criminal law And so as hit accidentally. quite an D guilty attempt so as to make to other of this intent one transfer ” 1474, Perkins at p. quoting 203 Cal.App.3d B.’ (Czahara, supra, to murder then 7, 8, applied The court Law, ch. p. 925.) Boyce, supra, & Criminal § Christie, to at only intending “If aimed to its facts: Czahara this conclusion He kill her. was her, prosecuted then to attempting only he was fiction of legal There no need to employ that convicted of attempt. for the attempt. Again to him fully punish intent in order transferred Johnson, should be shooting intent to shoot had no assuming it, but no assigns the law more.” which according culpability to punished It summarized rule: Cal.App.3d p. 1475.) 203 (Czahara, supra, lives, the an on two persons’ is to be single alleged attempt a act “[W]here victim, to each independently intent to kill should be evaluated (Ibid.) to transfer intent from to another.” not be instructed jury should Calderon, the to kill one person, defendant shot at intended The defendant was nearby hit child. child survived. missed and instead and, both intended on a target to murder convicted attempting Czahara, the child. The Court of followed Appeal theory, 1468, intent does not and concluded transferred supra, Cal.App.3d or not the committed “The crime of be whether apply. attempted Calderon therefore committed com injured. intended victim actually the greatest intended which is as serious as against crime his victim pleted that intent to his level could be achieved culpability by transferring which victim, need to the doctrine.” obviating (Calderon, unintended apply at p. Cal.App.3d 936.) to kill is above that intent explained We with these decisions. We agree but extends killing target every not “used up” not But this does not killed. actually apply persons killed. rationale person for intended to extend unin- suggestion Legislature liability We see no like murder. The crime of tended an inchoate crime victims not intended to do but did not accomplish, sanctions what attempt person and unaccomplished consequences. unintended potential differed long The mental for murder has required state the intent to minder Murder does require from that for itself. required disregard (People kill. conscious for life—suffices. malice—a Implied But 666].) P.2d Cal.Rptr.2d Lasko Cal.4th malice support made clear that cannot century ago, over a we implied murder, commit murder. ‘“To constitute conviction of an attempt life; an intend to take but to constitute attempt need not guilty *14 328

murder, so must intend.’ ‘The must wrong-doer specifically [Citation.] life; as, his contemplate taking successful, act is such were it though murder, be if in kill, would truth he does not mean to he does not become of an to commit guilty attempt murder.’ v. Mize (People (1889) [Citation.]” 41, 80 Cal. 43 P. 80], v. quoted People Murtishaw 29 Cal.3d (1981) [22 733, 738, 764 631 Cal.Rptr. 446]; P.2d see also v. Collie People (1981) [175 43, 458, 30 534, Cal.3d 61-62 634 P.2d 23 A.L.R.4th Cal.Rptr. 776].) [177 also We should between a murder distinguish and at completed murder intent. tempted regarding transferred Someone who truth does not intend to kill is of that person guilty person’s murder even if attempted the crime been would have murder—due to intent—if the murder, were killed. be guilty To of attempted defendant must intend to victim, kill the not someone else. The mental alleged defendant’s state must be examined to each alleged murder Someone attempted victim. who so, intends to kill person and to do attempts unsuccessfully guilty victim, murder of the intended but not of others. attempted Court of has also Maryland considered this Appeals question and reached the same conclusion.5 It drew an apt analogy between transferred rule, intent and the felony-murder which murder for a imposes liability death during occurs commission of certain felonies. generally (See People v. 300, 609, Hansen 9 Cal.4th (1994) 308 885 P.2d Cal.Rptr.2d 1022].) “Both doctrines intent and used to felony are impose [transferred murder] for criminal unintended deaths. there is liability Clearly, no crime [Citation.] murder no death attempted felony during when occurs course of a Likewise, felony. the doctrine transferred intent does not apply [Citation.] State, to when there death.” is no v. attempted (Poe supra, A.2d at p. 504.) case, another discussed another reason not to yet apply transferred

intent to an inchoate crime like murder. “A related reason attempted why transferred intent cannot murder derives properly apply attempted from crime fact that the no attempted requires physical injury to the (Shellman intent v. attempted 5Florida has also refused to extend transferred murder. State (Fla.Dist.Ct.App. 1993) 1010.) involving A 620 So.2d Nevada case facts similar to this State, (Ochoa supra, apply attempted case does transferred intent murder. 981 P.2d Birreuta, supra, The Ochoa 1201.) 454, court disagreed Cal.App.3d discussed and regardless we “applies concluded—as do—that transferred intent whether or not the State, injured.” (Ochoa supra, pp. 1204-1205.) intended victim 981 P.2d at It never separate question applies discussed the whether transferred murder. For reason, unpersuasive. unpersuasive this we find decision We also find a New Mexico Czahara, 1468, supra, appellate predating Cal.App.3d intermediate court decision Calderon, Cal.App.3d applies that concluded transferred intent (State v. Gillette 634-636].) P.2d murder. N.M. 695 *15 Calderon, at p. 232 Cal.App.3d noted in supra, circumstance victim [a where the defendant murder scenario . . . an Assuming attempted 936]. physically injured, no are bystanders at intended victim and fires a shot an to whom defendant’s to decide virtually sees it is impossible to everyone Is transferred the intent murder intent should be transferred. to everyone Is the intent transferred of bullet? in proximity path for is no rational method assaulted the shot? There thereby by frightened (Ford transferred.” to murder should be how defendant’s intent deciding State, A.2d at p. 1000.) supra, a murderous many people is real. The world contains This concern kill one cannot person intent to Obviously, does not intend to kill. assailant which of rationally how can a decide entire world. But transfer murder not intend kill were attempted the defendant did many persons can how unintended many persons on a intent To theory? victims as acts with malice constitute implied an intent kill be transferred? Just too, others, so, killed, of but not murder anyone actually attempted murder of anyone actually the intent to kill one constitute murder acts with person killed, but not others. attempted intent does to attempted conclusion that transferred not apply to be for punished

still who shoots at permits person group people in if that primarily targeted actions towards even everyone group person one of to the the defendant group, them. As members of nontargeted at firing be of crimes such assault with a might guilty deadly weapon Czahara, More p. vehicle. occupied supra, Cal.App.3d 1475.) an (See everyone be murder of might still importantly, person guilty on Ford court group, theory. in the not a transferred intent although (State v. this in one of its earlier cases explaining why discussed last point correctly 313 Md. 600 A.2d affirmed 1041]) Wilson in on transferred intent. murder convictions even it erred though relying best by distinguishing “The result can be explained justified Wilson (Ford intent and concurrent intent.” essentially between transferred what State, A.2d at p. 1000.) target the intent to kill although primary The Ford court explained survivor, desires to kill a particular does not to a the fact transfer also, that the person concurrently, does target preclude finding the “kill zone.” “The is concurrent to kill others within what termed attack, while directed at a primary . . . when nature scope victim, can intended to ensure are such that we conclude perpetrator that victim’s by everyone vicinity. to the victim primary harming harm commercial airplane assailant who a bomb on a example, places For an to harm a intending primary target board ensures this method of attack by that all will be passengers killed. consider a defendant who Similarly, and, intends to kill death, A in order to ensure A’s drives a group A, B, C, consisting *16 and attacks the with automatic fire group weapon or an explosive device to kill in the devastating enough everyone group. defendant has ‘kill his intentionally created a zone’ to ensure the death of victim, and the trier primary of fact infer may reasonably from method an intent employed to kill others concurrent with the intent to kill the victim. When the primary defendant escalated his mode of attack from a bullet aimed at A’s head single device, to a hail of bullets or an explosive that, factfinder can infer A, whether or not the defendant succeeded in killing the defendant concurrently intended to kill in A’s everyone immediate to ensure vicinity A’s death. The defendant’s intent need not be transferred B, from A to A, because although defendant’s was to kill his intent goal direct; to kill B was also it was concurrent with his intent to kill A. Where the means to commit the crime employed victim create a against primary victim, zone of harm infer around that the factfinder can that the reasonably defendant intended that harm to all who are in the zone. anticipated This situation is distinct from the heart’ ‘depraved [i.e., situation implied malice] because the trier of fact infer the may actual intent to kill which is in lacking heart’ ‘depraved State, [implied scenario.” (Ford supra, malice] 1000-1001, A.2d at pp. fn. omitted.)

California cases that have affirmed convictions kill the intent to requiring other persons than the can be primary target considered “kill zone” cases even do not though they that term. In employ People Vang (2001) 554, Cal.App.4th 563-565 Cal.Rptr.2d 704], for the defend- example, ants shot at two houses. The occupied Court of affirmed Appeal attempted as to charges both houses—11 everyone counts—even though defendants may have at each “The targeted only person house. drew inference, shots, a reasonable of the light placement number of shots, and the use of that defendants high-powered, wall-piercing weapons, harbored a intent to kill specific within the residences every living being shot . they . . The fact could not see all their up. they victims did not somehow their negate malice intent to kill as to those victims express who were and in present (Id. harm’s but were not way, fortuitously killed.” at pp. 563-564; see also v. Gaither People 666-667 Cal.App.2d wife; P.2d mailed to his poisoned candy convictions 799] [defendant for administering with intent to kill affirmed as to others lived at poison who the residence if even not a primary target].)

This case similar inference. Even if the permits—virtually compels—a found that defendant wanted to kill Wilson rather than Wil- primarily son’s it could also have found a concurrent intent to passengers, reasonably bullets kill his fired a flurry defendant and cohort those when passengers fully Such a finding created a zone. thereby car and fleeing at the as to the passengers.6 murder convictions supports here transferred intent argues Attorney applying General Scott, that, Cal.4th He under anomaly. *17 state: acted with the exact same mental in both scenarios the defendant victim, his resulted in the same to intended actions the intent kill his kill one exists. one any anomaly attempts harm.” We When disagree another, intended kills there are two victims: the always instead target, killed. But when one kills intended target actually intended may be different. One victim—the dead target—clearly situation exists, be clear. As but whether a second victim also exists less may above, be murders discussed the defendant convicted of may attempted zone, concurrent, transferred, intent within the on a not any although of in the the kill zone are victims necessarily Persons not within not theory. sense as the a that kills wrong person. same of target shooting murder, of other or no Convicting attempted defendant a crime than all, crime unintended as to who are neither killed nor within targets kill zone anomaly. creates no reasons, these that the of intent does

For we conclude doctrine transferred must guilt attempted not murder. Defendant’s apply attempted to each alleged be as victim.7 judged separately 3. The to This Case Law Applied case,

In this to kill does transfer to defendant’s intent Wilson so, killed his intended or Simon. This is not because defendant Morgan murder. but because transferred intent does not target, apply Morgan defendant is guilty attempted premeditated Whether instructions, jury as theory legal special is doctrine requiring 6This concurrent intent not a Rather, jury simply intent. it is a reasonable inference the is the doctrine rule given specific target intent kill a does not out a concurrent primary draw in case: a intent to kill others. crime, intent to express regarding application no of transferred such opinion 7We Stringfteld State v. e.g., (See, does battery, that is not inchoate and not involve homicide. aggravated battery].) (1980) Kan.App.2d applies P.2d intent 1041] [transferred them, Simon depends on his mental state as to not on his mental state as to Wilson. We must now decide whether the court instructed the correctly jury on this law, law. “Once we have ascertained the relevant we determine the meaning instructions in this Here the regard. is whether there question is a ‘reasonable likelihood’ that the jury understood the as the charge defendant asserts.” 1 Cal.4th (People Kelly (1992) 525 Cal.Rptr.2d 677, 822 P.2d 385].)

The majority below reversed the murder convictions. It con- court, cluded that the trial instruction to the “by referring on transferred intent in its reply jury led the question], jury to believe that a finding [to of premeditation as to the killing Wilson could be transferred to the wounding of and Simon.” Morgan Justice dissented. He Ortega noted that CALJIC No. 8.65 says only that when a person to kill one attempts person, “but mistake or inadvertence kills a different the crime is person,” same as if the intended had been killed. target He (Italics added.) argued that this instruction “could not have been to transfer intent applied by from Wilson to either or Simon.” Morgan Rather its language transferred to a instruction,” killed. person actually “The “is not argued, one the would have short, had trouble It any to the understanding. and uses point, words. I find no simple possibility could have *18 misapplied the instruction to nonfatal injuries. instruction uses the ‘kill,’ ‘kills,’ ‘killed,’ words and says about nothing injuries.” Justice that, Ortega evidence, also the argued given strength could not jury “rationally conclude that defendant did not intend to kill in the everyone car. He was at at point-blank range firing He hitting helpless could people. not, force, while such lethal using have intended to merely them or ‘wing’ inflict otherwise some sort of nonfatal We with the injury.” agree dissent. 8.65, it, CALJIC No. as the court refers to gave a mistaken but killing, not to injuries. instruction, labeled the Although “transferred intent” it does not use that term. It actually tells the that if merely jury, the defendant correctly, killed the the wrong person, constituted the same crime if the killing as intended had been It person killed. related to this case directly and properly who, informed the it did not jury have to determine defendant exactly, intended to kill in order to him find of murder. But it guilty did not go further. It did not the allow to transfer intent to jury someone who is only injured. Czahara, Cal.App.3d page which found prejudicial error, 8.65,

instructional the trial court modified CALJIC No. and told the jury: “When one to kill a attempts certain mistake or person, crime, inadvertence a different the if injures person, so committed is the any, had been injured.” be killed the originally same as though person Here, such committed no the court modification.) added to indicate (Italics coverage its to a person did CALJIC No. 8.65 extend modify error. It not merely injured. instruction, the later the argument jury, unlike attorney’s

The district murder counts. But intent to the the could transfer suggest jury did deliberations, the when, during this regard dispelled was any uncertainty as to on Wilson finding asked whether its premeditation jury specifically The court Morgan. the as to charge over” to would “follow had “make a determination that the correctly, jury responded, again count, willful, malicious, find you premedi- as to each whether specifically tation, finding. as count. make a separate if find those to each You you the other. You have to . . . not lead and follow to necessarily One does [f| the court parties, at each After separately.” conferring look count instructions, CALJIC jury including referred to the relevant additionally from 8.65, count is determined separately No. and reiterated “each to a on finding So on not lead necessarily another. one does finding another.” statements, court, and the foreperson’s asked question jury language

showed conscientiously parsing precise which, case, instructions merely in this did not transfer intent to a person No this have reason to believe would misread injured. appears what it The court also language saying say. instruction’s as did simple this correctly jury’s point. Accordingly, answered specific question see no charge we reasonable likelihood that understood Moreover, to a merely injured. to transfer to kill permitting Ortega virtually we with Justice evidence here agree compelled Wilson, also, that, even if defendant wanted to finding primarily *19 least, intended to the others in car. At concurrently, dissent, conclude giving to create kill zone. to the we that Contrary instructions the case was not correctly relating prejudi- that state the law to error.8 cial

B. Proximate Causation who, the sentence of in anyone

Section enhances 12022.53(d) murder including commission of felonies murder specified case, future 8Although jury did the instructions in this in we find the not misunderstand charges, (or manslaughter) might be involving murder and cases both attempt clarify apply does not to the specifically better for the court that charges. 334 Code, 12022.53,

(Pen. subd. (a)(1), (18)), “intentionally personally § a firearm and discharged caused proximately great as defined bodily injury, 12022.7, death, Section to any other than an [Penal Code] . . . .” The accomplice found this enhancement true as to the murder and attempted The trial court charges. instructed the on these elements, it did statutory not define the term caused.”9 “proximately Defendant that the trial argues court had a sua define sponte duty proximate causation for the and that its jury, failure to do so was prejudicial. The majority below that the agreed. Noting “evidence was not clear as to two, cohort, which of the defendant or his fired the shots that hit each of the victims,” three it concluded that “without a definition of proper proximate cause, the jury could have found the enhancement true without determining that a bullet fired defendant struck a by victim.” Justice dissented. Ortega

The Attorney General the trial court had argues no sua sponte duty define causation. proximate disagree. We The court instructed the statute, terms of the which is if the jury would have no appropriate difficulty understanding statute without guidance. v. Estrada 11 (People (1995) 568, 586, Cal.4th 574 904 Cal.Rptr.2d P.2d A has 1197].) court [46 no sua sponte duty define terms that are commonly understood those by familiar with the English but it does have a language, duty define terms that have a technical to the law. meaning peculiar (Ibid.; v. People Mayfield 668, 1, 14 Cal.4th (1997) 773 Cal.Rptr.2d 928 P.2d 485].) are [60 “[T]erms held to clarification require the trial court when their definition statutory differs from the be meaning might ascribed to the same terms in Estrada, common parlance.” 574-575, 11 (People Cal.4th at pp. citing 1347, v. Richie People (1994) Cal.App.4th Cal.Rptr.2d [34 200].)

Even courts and the legal have with the community struggled meaning causation. “The proximate the term misunderstanding engendered by ‘proxi- mate cause’ has been documented.” v. Gonzales (Mitchell 54 Cal.3d (1991) 1041, 819 P.2d “It is Cal.Rptr.2d 872].) reasonably likely when hear the jurors term cause’ ‘proximate they misunderstand its . . Mitchell, . .” at meaning (Id. we the then p. 1050.) disapproved standard instruction on causation in civil cases. proximate 1050- (Id. pp. We have since found that the earlier 1054.) instruction’s “infirmity equally in criminal cases.” Roberts great Cal.4th (People *20 instructed; you guilty 9The court “If find the defendant of murder [or] , you . . . intentionally personally discharged must determine whether the defendant and a death, proximately great bodily injury, firearm and caused or as defined in Penal Code section Wilson, Skylar 12022.7 the court defined to Kenneth Leon Simon and [which earlier] Morgan.” 3.40, criminal No. the standard P.2d CALJIC 274].) Cal.Rptr.2d deci causation, to reflect these been modified has since law instruction on 1750, 1754-1756 Temple Cal.App.4th sions. (See People that cau proximate make clear These decisions Cal.Rptr.2d 228].) law, have that a would to the meaning does peculiar sation have the thusWe conclude guidance. its without understanding meaning difficulty causation. defining proximate court erred in not we must decide what To error was prejudicial determine whether the rev.) No. 17.19.5 (2002 the should have CALJIC given. instruction court section instruction regarding ed. is the current standard (6th 1996) enhancement, the time trial here. it did exist at although 12022.53(d) identical to CALJIC causation in terms proximate substantially It defines of section “A provisions 12022.53(d): proximate No. 3.40 but adapted or in motion or is an act omission sets great injury cause death bodily direct, consequence a chain of events that as a natural and produces probable or or and without which great injury of the act omission death bodily not have occurred.” bodily (Brackets omitted.) or death would great injury 17.19.5, states, No. “If there is more than The Use Note to CALJIC death, also given.” one cause of the or CALJIC 3.41 should be bodily injury 3.41, turn, CALJIC No. of section adapted provisions more cause [great “There be than one 12022.53(d), provides: more injury persons or When the conduct two or contrib bodily death]. death], utes as a cause of the or the conduct [great bodily injury concurrently is a if that was [great bodily injury of each cause of or conduct death] also a to the result. A cause is concurrent if contributing substantial factor or and acted at the moment of the operative [great bodily injury death] another or [great bodily injury you cause to produce death]. [If ffl] or find that the was a cause of [great bodily injury defendant’s conduct conduct of other to another then it is no defense that the some person, death] contributed [, [injured] person,] [great even the [deceased] references to bodily injury (Bracketed “great bodily injury or death].]” added other brackets 12022.53(d); death” instruction adapt § original.) found No. “is not defini- proper

The Court of CALJIC 17.19.5 Appeal would a true finding tion of cause. That instruction proximate permit enhancement the death and inflicting injuries based cohort’s [on] firing gun. defendant’s him also aiding abetting simply by defendant fired personally enhancement cannot be found true unless does not Attorney the victim. We note that the General bullets which struck in this General contends court Attorney contend otherwise.” that “proximately No. the law. He correctly argues CALJIC 17.19.5 states *21 caus[ing]” or death is different injury from personally inflicting injury death, and that defendant could indeed cause proximately injury or death even if his own bullets did not hit anyone. the Court of

Citing statement that “the Appeal’s General Attorney does not contend otherwise” Court, and California Rules of rule defend- 29(b),10 ant claims that the General is Attorney from this precluded making argument because he did not it make in the Court of We In Appeal. disagree. the Court of Appeal, defendant neither criticized CALJIC No. nor 17.19.5 that argued section requires defendant to 12022.53(d) fire the bullets personally that inflict the harm. The Court of Appeal opinion for the inteijected point Therefore, first time. filed, until the opinion was General had Attorney no reason to it either argue way. An argument responsive to a only point Court of raised for the Appeal first time in its is not an “issue opinion could have been . . . raised in the briefs filed in the Court of within Appeal” Court, meaning California Rules of rule 29(b). General Attorney is entitled to in this court that the argue Court of conclusion Appeal’s legal is incorrect.

We believe that CALJIC No. 17.19.5 does correctly define proximate causation. Section 12022.53(d) the defendant requires “intentionally personally discharged a firearm” (italics added), only that he “proxi- mately caused” the great bodily or death. The injury in- jury, properly structed, found that reasonably defendant did personally discharge firearm. The statute states else that nothing defendant must personally do. Proxi- mately causing harm personally inflicting are two different things. The Legislature is aware of the difference. When it wants to require personal infliction, it Code, so. says 12022.7, Pen. (E.g., subd. (a) [imposing § sentence enhancement on a who inflicts “personally great bodily When it injury”].) else, wants to require something such as proximate causation, so, it as in says section 12022.53(d).

The Court of considered a similar Appeal question People Rodriguez Cal.App.4th Cal.Rptr.2d Rodriguez, prosecu- 567]. tion alleged that a certain conviction was a serious prior felony under Penal 1192.7, i.e., Code section subdivision that was a (c)(8), felony which defendant “personally conviction, great bodily injury. prior inflict[ed]” however, was of a crime that that the defendant’s required actions “proximately Code, 148.10; death or serious bodily injury. (Pen. cause[d]” § see People Rodriguez, supra, pp. The trial court instructed the 345-346.) relevant, provides: 10As that rule policy, petition “As a matter of the Supreme for review normally Court (1) any will consider: issue that timely could have been but was not [f] Court, in the Appeal.” (Cal. raised briefs filed in the Court of 29(b).) Rules of rule *22 3.40, the No. and CALJIC causation under proximate in terms It reversed. Court of Appeal serious. The the conviction was prior found from person different concluded, clearly an causing injury “Proximately “To 351.) v. at supra, p. an inflicting Rodriguez, injury.” (People ally not just an injury, is to cause directly inflict’ injury an ‘personally it the jury because allowed instruction was wrong cause it. The proximately ‘direct, and . a natural if the . . was injury against Rodriguez to find if did action, even Rodriguez Rodriguez’s consequence’ probable 347-348.) inflict at (Id. pp. the injury.” personally 31 568 v. Cole Cal.3d People The court discussed Rodriguez section construed Penal Code 1182], 645 which P.2d Cal.Rptr. bodily the defendant great that requirement “personally 12022.7’s inflict[] distinct the term inflict’ has a “Cole illustrates that injury.” ‘personally intent to punish that in a statute a signifies legislative and its use meaning that inflicts an . . . We think obvious the actor who directly injury. can cause without injury personally an individual and does proximately often instance, Cole, of a an aider abettor For noted in injury. inflicting a exit— blocking commit victim’s crime can a direct act—affirmatively infliction personal not constitute injury, which causes does proximately v. 31 Cal.3d at p. (People Rodriguez, supra, of an injury. (Cole, supra, 571.)” 348-349, the term at italics The court contrasted Cal.App.4th added.) pp. inflicts” the the used in section language Legislature “personally “ ‘ “It construction recognized statutory is a well 12022.53(d). principle the term in and has Legislature carefully that when has employed place ’ another, it in not be excluded it should where excluded.” implied [Citation.] illustrate, To included cause’ in Legislature ‘proximate [Penal Code] However, 12022.53 did not the proxi section .... Legislature employ mate cause it articulated the for enhancement concept requirements when 12022.7, but used the language ‘person under section instead [Penal Code] 12022.7, .... inflicts subd. great injury.’ ([Pen. Code,] (a).) ally bodily § into statute when impute concept We decline cause proximate left it v. at pp. 349-350.) out.” Legislature (People Rodriguez, supra, It imputed Court of erred in the Appeal way. personal here reverse left it v. into statute when the out.” “concept Legislature (People infliction can cause proximately at A supra, p. 350.) person Rodriguez, Cal.App.4th weapon discharged without injury personally firing gunshot Sanchez, Cal.4th v. harm-inflicting example, People supra, bullet. For battle, an innocent Who bystander. two in a persons engaged gun killing harm, inflicted bullet, thus who fired fatal personally unknown, gunmen that both proximately but we held that could find did is true here. If defendant (Id. 848-849.) caused the death. same pp. victims, not fire the that hit bullets he did not but he personally inflict, caused, 3.41, have the harm. proximately CALJIC Nos. 3.40 and 17.19.5, Sanchez, hence correctly define causation. proximate (People 845; Cervantes, supra, Cal.4th at p. 26 Cal.4th at People pp. the trial court 866-867.) Accordingly, should have an instruction like given and, CALJIC No. 3.40 cause, because the evidence suggested more than one 17.19.5, No. 3.41 CALJIC No. (today when the augmented, evidence sug- *23 cause, more than one gests by CALJIC No. 3.41). conclude, however,

We also that the error was harmless under stan- any dard. The majority below reversed the enhancement because the findings have jury might found the enhancement true without that defendant finding However, seen, fired a bullet that struck a victim. as we have section does not that the 12022.53(d) require defendant fire a bullet that directly inflicts the harm. The enhancement so as defendant’s applies long personal i.e., substantial, of a firearm discharge was proximate, factor contributing to the result. above, Gonzales,

As noted we stated in Mitchell v. supra, Cal.3d at 1050, that page jurors the term cause” hearing “proximate “misunder- stand its . . . .” meaning there, To what we said complete jurors “may misunderstand its or limit meaning improperly their discussion of what constitutes a However, cause fact.” italics (Ibid., who added.) jurors limit their improperly discussion of what constitutes cause will not proximate find causation where it does not exist. The correct definition of proximate broader, narrower, causation is than assume. In a jurors might criminal case, we noted that “in Mitchell we criticized the cause proximate [former undue on placing emphasis nearness. physical temporal instruction] Thus, . . . such any confusion on the could jury’s part [Citation.] Roberts, benefit 313; defendant.” (People Cal.4th at see also p. v. Catlin 26 Cal.4th People 26 P.3d (2001) Cal.Rptr.2d 357] case, this [citing with On the facts of this language approval].) jury could not have misunderstood the term cause” in a that would “proximate way defendant, i.e., have prejudiced would have resulted in a finding causation on an basis. proximate improper to the arguing dissent contends the have found contrary, jury may

that the cohort his first and gun injuries. fired inflicted that the Assuming evidence supported such and that those circumstances would findings pre vent a true on the enhancement In re R. finding (cf. Sergio 588, 601-602 we Cal.App.3d still see no Cal.Rptr. 149]), prejudice. means, Even if the did not know what causation no jurors exactly proximate who is conversant in the would find that juror English language discharging a firearm caused that had occurred. proximately injuries already

III. Conclusion the matter and remand Appeal Court of We reverse judgment with this opinion. consistent proceedings for further J., Brown, J., J., concurred. J., Baxter, Werdegar, C. George, that the I am of the view J., Unlike the KENNARD, majority, Dissenting. the trans instruct scope failure the jury trial court’s to properly trial I that the Nor do agree intent doctrine defendant. prejudiced ferred the term cause” connection “proximate failure define court’s or death bodily causing great injury sentence enhancement for “proximately” harmless error. I *24 member, Simon, neither of whom was a Morgan gang and Leon Skylar a 6, 1999, Beach in on the March were in they Long testified that night Wilson, Crips of the 20’s Rolling Kenneth “Kebo” a member car driven man, Wilson the car talk to defendant and another street gang. stopped asked a When defendant Crips, gang. both members the Insane rival was, “Kebo,” he that his adding passengers Wilson if was Wilson replied and He said he off his gang drop passengers were not members. would 20’s,” As Wilson opened “So Kebo from defendant fire. Saying, you return. and fired the car. Wilson started to drive defendant his away, companion killed; Simon, his were Morgan was and wounded. passengers, Simon, shooting. started According and was defendant who Morgan the jury, to the that was played In a statement tape-recorded police shots, LeBeau, after said his Patrick fired the first defendant companion, his “home because LeBeau was “just shooting, which defendant started too” Wilson, The not show fired the shots that hit evidence does who boy.” and Simon. Morgan, the floor Beach Police Officer Paul Edwards found a loaded

Long gun gun of Wilson’s car the driver’s seat and door. between inoperable. of Wilson and the

A convicted defendant jury found true Simon. As to each count Morgan murders and fired had and gun “proxi- sentence enhancement defendant allegation Code, 12022.53, subd. or death. great bodily injury (Pen. caused mately” § (d)0 convictions,

The Court of reversed the based on Appeal its conclusion that the trial court had misinstructed the on transferred intent. It also reversed the sentence enhancement because of the findings causation, trial court’s failure to define proximate an element of the enhancement.

II statement, In his closing prosecutor argued defendant fired at the victims’ car with a Simon, intent to kill premeditated passengers Morgan but he Wilson, also that even if argued defendant intended to kill driver could, the jury intent, the doctrine of by applying convict defend- ant of words, to kill attempting Morgan and Simon. his “the intent . . . bullet; follows the it, wherever are you that’s where it pointing goes.” When defense counsel there argued was no evidence that defendant Simon, intended to kill Morgan told the prosecutor rebuttal: that, of the instructions talks about it is the of transfer concept “[0]ne [sic] intent. You don’t if get benefit to kill one you try inadvertently another, that that bullets, was not intent. An your follows attempt kills a different the crime so committed is the same as person, though you had originally that intended given law does not excuse bad target. other marksmanship for hitting people. each of responsible [Defendant] those acts.”

After closing the asked the trial argument, prosecutor court to the give 8.65, CALJIC No. the jury standard instruction on transferred intent. He this reason: gave of the defense was argument basically didn’t “[T]he necessarily intend to shoot the other people [Morgan And I felt Simon]. it to that with transfer intent.” The necessary respond trial court then [sic] instructed the “When one to kill a jury, certain attempts person, crime, mistake or inadvertence kills a different if so person, any, killed, committed is the same as intended to be though person originally had been killed.” deliberations, the

During jury finding asked trial court whether a premeditation as to the murder of Wilson would “follow over” to the murder of The attempted Morgan. court had to make responded jury whether, count, determination as to each defendant’s acts were separate willful, malicious, and The then asked the trial premeditated. prosecutor court to direct the to consider CALJIC Nos. 8.65 jury (transferred intent), 8.66 (defining attempted and 8.67 murder) (defining attempted premeditated so, The court did “I will refer to three murder). telling jury: you jury 8.65, One is a determination. reaching instructions that assist may you those, 8.66, ... If wish to take a look you other is and the third is 8.67. count, to each each count is determined be With may helpful. respect [f| does not lead necessarily from one another. So a on one finding separately on another. It assist.” finding intent does holds that the doctrine of transferred majority correctly Thus, here had acted not to a murder. if defendant apply charge attempted Wilson, and Simon Morgan with a intent to kill but as premeditated kill, be convicted of the lacked or intent to he could not premeditation Nevertheless, the con- majority murder. charges attempted premeditated 8.65, err in CALJIC No. cludes that the trial court did not giving instruction on transferred intent. The reasons that instruction majority if it that in to kill discussed what the should do were to find only jury trying the defendant killed another. This leads the to conclude majority person, that the must assumed that the instruction pertained only have Wilson, the transferred that defendant murdered a crime to which charge doctrine and that the did not the instruction to applies,1 apply because were not charges Morgan victims and Simon attempted killed. is unsound for three majority’s reasoning reasons.

First, 8.65, believed that CALJIC No. the instruction on prosecutor intent, to murder but also to murder: applied He asked the trial court to the instruction to counter specifically give defense argument that defendant should not be convicted of attempted murder because he lacked the intent to kill and Simon. If the Morgan law, trained and in criminal incor- prosecutor, professional experienced murder, rectly believed that the instruction it is difficult applied to fathom the conclusion that a individuals would majority’s lay to the facts in this case the con- correctly apply complex legal principles tained in the instruction on transferred intent.

Second, on transferred although the that the instruction majority right murder, intent to a of here the did not warrant applies charge applying facts to of the instruction to the instruction the murder Wilson. To apply murder, the intended Wilson would have had to believe that defendant jury Simon, wounded, intend to to kill and were but that he did not Morgan who 1English for over four applied courts have transferred intent doctrine to 706, v. Saunders & Archer (See 708.) (1576) Eng.Rep. centuries. For almost Queen century, consistently applies this court has held that the doctrine to California’s murder 178, 544, (See People v. Scott (1996) Cal.Rptr.2d statute. 14 Cal.4th 927 P.2d 549-550 [59 288]; People Suesser 1093].) P. Cal. however, evidence, Wilson, from wounds. gunshot who died Wilson, a member to kill that defendant wanted suggesting

just opposite, Simon, to any gang. did not belong who but not gang, Morgan of a rival jury apply did not ask Third, argument prosecutor in closing Instead, of murder of Wilson. charge intent to the on transferred instruction when of counts attempted that it two applied he argued of those was not guilty that defendant to the defense argument responding Morgan two passengers, intend to kill Wilson’s because he did not charges Simon. intent to the of transferred the doctrine must have applied That court, to the trial from its question murder follows of charges attempted murdered as to the deliberations, of finding premeditation whether a during reasonably One can Morgan. over” to the wounded would “follow Wilson Wilson, to kill about defendant’s that the did inquire conclude 8.65, CALJIC No. the answer: that under it knew already because it believed Simon, the two victims alleged Morgan it transfer that intent could murder. attempted 8.65, the No. to reread CALJIC to the jury

The trial court’s directive so, reinforced, intent, erroneously albeit have on transferred must instruction charges that instruction to apply belief that should jury’s the jury had asked murder, closing argument, as the prosecutor, attempted to do. intent was of transferred on the doctrine

The trial court’s instruction charge to the it applied Not at all clear was whether ambiguous. murder charges to the Wilson, it also applied murder of or whether instruc- a trial court’s and Simon. When Morgan to the injured pertaining is “a there must determine whether court reviewing tions are ambiguous, the words” or misapplied that the misconstrued reasonable likelihood 629, 663 Cal.Rptr.2d 2 Cal.4th v. Clair (1992) instruction. (People above, it is a virtual case, the reasons given In this for 705].) 828 P.2d 8.65, the instruction on No. CALJIC that the jury misapplied certainty murder. intent, charges harmless error was instructional any concludes cursorily The majority that, even if finding compelled here virtually “the evidence because also, Wilson, concurrently, to kill wanted defendant primarily kill zone.” (Maj. to create a he “intended in the car” because kill the others because to kill Wilson Defendant had a motive ante, Not so. 333.) at p. opn., *27 two but Wilson’s of a rival gang, be a member the latter to he knew Simon, said so were not members and Wilson Morgan gang passengers, defendant; that defendant had any offered no evidence prosecution could have certainly motive to kill the two passengers. Although jury car, in the I concluded that defendant intended to kill all of occupants “beyond (1967) cannot a reasonable doubt” say (Chapman California 705, 824, 828, 24 A.L.R.3d that the 1065]) U.S. S.Ct. 17 L.Ed.2d would have reached such a conclusion. jury necessarily

Ill of Subdivision Penal Code section 12022.53 defend- (d) provides any who, felonies, ant in the commission of specified “intentionally person- a firearm and ... or ally discharged proximately great bodily caused injury death, to any other than an must be accomplice” (italics added) sentenced to a term 25 life in The trial court here years prison. instructed the on this sentence enhancement jury but did not define term for the I “proximately” jury. disagree with the that the trial court’s majority failure to do so was harmless error. conclusion,

In of its this statement support majority quotes of this majority court in Mitchell v. Gonzales 54 Cal.3d 1050 [1 913, 819 P.2d “It is Cal.Rptr.2d that when hear reasonably likely jurors 872]: the term ‘proximate they cause’ misunderstand its meaning improp limit their erly discussion of what constitutes a cause in fact.”2 Seizing statement, the last half of this that if the majority observes trial court’s failure to define proximate cause caused the limit” “improperly cause, at (Mitchell, p. 1050) the defendant scope proximate could not have been injured. majority “[Tjurors who limit their explains: improperly discussion of what constitutes cause will not find causation proximate where it does not broader, exist. The correct definition of causation is proximate narrower, ante, than jurors assume.” at I might (Maj. opn., p. 338.) agree with the that if the majority cause had a more limited jury thought proximate term, than the correct meaning definition of that the trial court’s failure But, define it did not prejudice defendant. as I shall that is not the explain, only way which the have jury may misconstrued the meaning proxi mate cause. Mitchell, this court described an conducted as of “a experiment, part “ instructions,” of 14

scholarly study which ‘the term “proximate Mitchell, 3.75, disagreed majority’s 2In I disapproval of BAJI No. a standard Gonzales, Mitchell v. defining (See proximate instruction cause. 54 Cal.3d Kennard, pp. (dis. J.).) majority’s opn. jurors 1056-1062 observation there that are likely “proximate meaning to misunderstand the term cause” unless its is defined for them point disagreement. not a *28 ” it meant was 23% of the who by subjects,’ thought

cause” misunderstood “ ” ‘ cause,” cause,” “estimated or some fabrication.’ (Mitchell “approximate Gonzales, 54 Cal.3d at The words p. 1051.) “approximate” a level of that is less than the certainty “beyond “estimated” both imply in doubt” in criminal cases. Like the required subjects reasonable standard misunder- may similarly described here have just experiment, jury the word stood “proximately.” No. ed. defines a (2002 rev.) 1996) correctly proxi-

CALJIC 17.19.5 (6th or or that sets in mate cause of death as “an act omission great bodily injury direct, motion a chain of events that as a natural and produces probable or death and bodily of the act or omission the great injury consequence which occurred.” bodily without or death would not have great injury this If the jury. That is how the trial court in case should have instructed the instructed, as to had been could it have had reasonable doubt so death but also whether defendant caused not Wilson’s “proximately” “yes.” and Simon? The answer is injuries Morgan victims, necessarily the bullets the three it If defendant did fire that struck caused death.” bodily injury (Pen. follows that he ... or great “proximately Code, fired 12022.53, But and his companion subd. both defendant (d).) § Thus, shots, does not shots the injuries. evidence show whose caused could doubt defendant shot beyond not have found a reasonable that was who shot the three victims. Even if defendant’s the one accomplice them, if he motion a defendant caused their injuries proximately “set[] “direct, events” as a led probable consequence,” chain of natural scenario have required No. That would shooting. (CALJIC 17.19.5.) first, all his It is not at following defendant shoot suit. accomplice however, clear, defendant. fired first. Morton and Simon testified it was who defendant, to the that was police played But in a statement tape-recorded trial, and defendant began shooting claimed his who companion was scenario, him Under if bullets accomplice’s then this joined support. victims, the three defendant did not proxi- rather than defendant’s struck his on shooting cause because the started injuries, accomplice their mately initiative, defendant. not in an act response own accounts, been uncertain have conflicting Because these Morton, Wilson, hit Given that first shots and Simon. who fired and whose instructed the meaning had it been uncertainty, properly jury, it could find cause, beyond have well decided proximate might caused proximately great bodily injury doubt that defendant reasonable Thus, that term court’s failure to define to the three the trial death victims. 18, 24 386 U.S. California, supra, Chapman error. prejudicial (See 824, 828].) S.Ct.

IV *29 above, of the Court of For the reasons I would affirm given judgment defendant’s convictions for attempting which reversed Appeal, for use of also reversed the sentence enhancements Morgan Simon and as the injuries a firearm that caused the death of Wilson well proximately and Simon. Morgan Moreno, J., concurred. create an notes would target at two and misses who shoots persons a defendant It murder. unintended victim be guilty kills an kills who instead anomalous, he to conclude that a urges, be would most, and, as to of murder assault guilty the intended target this result would “reward argues, victim. “Paradoxically,” unintended aim, the fact the one bad punish despite aim with good defendant