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California Court of Appeal: Kill-Zone Theory Principles Articulated in Canizales Are Retroactive to Judgments That Were Final at Time of Decision

by Jacob Barrett

The Court of Appeal of California, Fourth Appellate District, reiterated the kill zone theory principles set forth by the California Supreme Court in People v. Canizales, 442 P.3d 686 (Cal. 2019), and held that Canizales applies retroactively to judgments that were final at the time Canizales was decided.

Jessie Sambrano and two codefendants, Daniel Torres and Anthony Lares — all alleged gang members, drove through the territory of a rival gang. Sambrano was driving the car. The trio drove past a group of people gathered outside a house. They believed rival gang members were in the crowd.

Sambrano stopped the car, and the other two men opened fire on the group. The shots killed one person and wounded two others.

Sambrano was convicted of six counts of attempted murder. He filed a petition for writ of habeas corpus seeking reversal of his convictions because the judge gave the jury a kill zone instruction that was erroneous under Canizales. The People conceded the error but argued it was harmless.

The Court began by explaining the evolution of the “kill zone theory,” which was first approved by the California Supreme Court in People v. Bland, 48 P.3d 1107 (Cal. 2002). The Supreme Court again examined the kill zone theory and clarified its scope in Canizales.

The Court explained Canizales held the kill zone theory in establishing the specific intent to kill necessary for a conviction for attempted murder may properly be applied only when a jury concludes: “(1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm — that is, an area in which the defendant intended to kill everyone present to ensure the primary target’s death — around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.”

The Canizales Court instructed, “the kill zone theory does not apply where ‘the defendant merely subjected persons near the primary target to lethal risk,’” and in order for the kill zone theory to apply, “evidence of a primary target is required.”

The Court noted that the Canizales Court did not address whether the principles set forth in its opinion are retroactive to final judgments. Citing In re Rayford, 50 Cal. App. 5th 754 (2020) (holding that because Canizales resulted in a substantive change in the law, it applies retroactively to cases in which judgment is already final), the Court agreed with that court’s reasoning and similarly concluded that Canizales applies retroactively to judgments that were final when it was decided.

Turning to the facts of Sambrano’s case, the trial court instructed the jury on former CALCRIM No. 600, “stating that Sambrano could be found guilty of attempted murder if he created a kill zone and intended to kill everyone within that zone” and that Sambrano could be found guilty if Sambrano “intended to kill each of the six victims specifically.” Sambrano argued the trial court erred in giving the same jury instruction that Canizales concluded was flawed, and the Court agreed.

The Court explained that following Canizales CALCRIM No. 600 was heavily revised, but “even the current, revised version of the instruction largely retains one of the defects we have identified.” Specifically, “the revised instruction does not require the jury to find that the defendant intended to kill everyone in the area around the primary target in order to ensure the death of the primary target,” the Court explained.

The Court opined: “Given the Supreme Court’s words of caution, the apparently ongoing difficulty in crafting an error-free instruction on the kill zone theory, and the absence of any requirement to give a kill zone instruction, it is not clear why it would ever be prudent to give such an instruction. It appears easy to commit error by instructing the jury on the kill zone theory, but it is literally impossible to err by declining to do so.”

While the People conceded that the trial court gave an erroneous instruction on the kill zone theory, the People nonetheless argued the error was harmless. The Court flatly rejected that argument, declaring “the kill zone theory is categorically inapplicable to this case.” It based its conclusion on the following facts: (1) there is no evidence that any person was the primary target, (2) there is no evidence that Sambrano knew anyone at the gathering or that the Rodriguez house was the planned destination, and (3) there is no evidence that any specific person at the gathering did anything to cause Sambrano to target them. The Court explained that because there is no evidence that there was a primary target, it was improper to provide the kill zone theory instruction.

 “The prosecutor’s closing argument exacerbated the problem,” the Court stated. “The prosecutor relied almost exclusively on the kill zone theory … in arguing that Sambrano possessed the necessary mental state for attempted murder. Moreover, the prosecutor’s argument erroneously articulated the kill zone theory in terms of a ‘zone of danger’ and informed the jury that a primary target was not necessary.”

The Court determined that because (1) the jury should not have been instructed on the kill zone theory, (2) the instruction was erroneous, (3) the prosecutor relied on the theory, and (4) the prosecutor’s argument concerning the kill zone theory was erroneous, it “could not conclude beyond a reasonable doubt that a properly instructed jury would not have reached a verdict more favorable to Sambrano.”

Accordingly, the Court vacated the six attempted murder convictions and remanded the case to the trial court with directions to allow the People to decide whether to retry Sambrano on those counts. See: In re Sambrano, 79 Cal. App. 5th 724 (2022). 

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