by Matt Clarke

The Court of Appeal of California, Second Appellate District, held on June 16, 2020, that the California Supreme Court’s decision limiting the kill zone theory in prosecutions for attempted premeditated murder applies retroactively. The court reversed 11 convictions each for two habeas petitioners.

Juan Marshall Rayford and Dupree Antoine Glass were each convicted of 11 counts of attempted willful, deliberate, premeditated murder and one count of shooting at an inhabited building and found true gang and firearms enhancements. The trial court sentenced each to 11 consecutive life sentences for the attempted murders and 20 additional years for each count on the firearms enhancements. It stayed the sentences on the gang enhancements and shooting at an inhabited dwelling.

The convictions stemmed from a 2004 shooting at the house of Sheila Williams, where she lived with her three daughters, Donisha, Shaddona, and Shontel.

Glass was 17 years old; Rayford was 18. Glass was friends with Donisha and a frequent guest who was considered a “member of the family.” Rayford went to school with one of Sheila’s daughters.

There was a party for friends and family at the house. Glass and Perry, Shelia’s 17-year-old nephew, began to argue. Glass gathered people, including Rayford, to confront Perry outside, but Donisha and Shaddona got Perry into a car and drove him to their grandmother’s house where they left him.

Glass and Rayford left but returned with three cars full of young men. They stood in the front yard and demanded that Perry come out and take a beating.

Sheila came out to the front yard along with others from the party. She told Glass that Perry was not there, but Glass insisted that Perry come out. Sheila tried to corral the children who had come out and send them back to the house. She told Glass there would be no fight as she retreated toward her house.

One of the men who accompanied Glass ran past Sheila and punched one of Sheila’s neighbors. Gunfire broke out. Donisha saw Rayford fire the first round “straight up into the air.” Glass started shooting “directly toward the house” into the front window from his position about 33 feet in front of Sheila. Eight rounds hit all over the house, one of which grazed the back of a girl who was in a second-story bedroom. Another round struck one of Sheila’s neighbors in the leg as he was retreating toward the house.

At trial, the court gave the jury an instruction that a “person who primarily intends to kill one person, may also concurrently intend to kill other persons within a zone of risk,” which it called the kill zone. The prosecution’s theory was that Sheila and the two people who were shot were the primary targets and basically the other people in front of the house were in the kill zone. The Court of Appeal affirmed the attempted murder convictions but vacated the gang and firearms enhancements.

Attorney Annee Della Donna assisted Glass and Rayford in filing petitions for a writ of habeas corpus. The Court of Appeal noted that, in People v. Canizales, 442 P.3d 686 (Cal. 2019), the California Supreme Court held that, to establish a specific intent to kill under the kill zone theory, the jury must conclude that the circumstances of the attack on the primary target, including the type and extent of force used, “are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm” with the intention of killing everyone in that area to ensure the death of the primary target. The Canizales Court cautioned that there would be relatively few cases where it would be appropriate to apply the kill zone theory and used bombings and spraying a crowd with assault rifle fire as examples, explaining that “the use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction.”

The Court of Appeal next determined that Canizales should be applied retroactively on post-conviction habeas review. In doing so, it leaned heavily on the approach taken by the California Supreme Court in In re Martinez, 407 P.3d 1 (Cal. 2017), and People v. Mutch, 482 P.2d 633 (Cal. 1971), essentially holding that Canizales is not a new rule but rather a vindication of the original meaning of the statute that neither expressly overturned past precedent nor disapproved specific decisions of the Court of Appeal and thus should apply retroactively. The Court stated that it would “reach the same conclusion” using the federal standard of Teague v. Lane, 489 U.S. 288 (1989), as the change ushered in by Canizales is substantive.

Applying Canizales to the case at hand, the Court held that the evidence supported a reasonable alternative that Glass and Rayford did not intend to kill everyone in front of the house but instead acted with conscious disregard of the risk of serious injury to those people. For instance, Glass stood directly in front of Sheila but did not fire at her — instead directing his fire toward the front window. Rayford fired into the air, at least initially. Further, the eight bullets recovered from the house were not aimed at a specific area but hit all over the house, and there was no evidence that Glass or Rayford aimed at any specific person.

Because the evidence did not exclude every inference except that Glass and Rayford intended to kill everyone in front of the house, the kill zone theory could not be used to obtain the convictions. The error in using the kill zone theory was not harmless beyond a reasonable doubt. Accordingly, the Court granted the petitions, and all of the attempted premeditated murder convictions were vacated with the cases returned to Superior Court for further proceedings. See: In re Rayford, 2020 Cal. App. LEXIS 542 (2020).

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