People v. Canizales

T

he convictions in this case arose from a gang-related shooting at a neighborhood block party on West Jackson Street in Rialto. Travion Bolden and Denzell Pride, the alleged attempted murder victims, both lived in apartments on West Jackson and were members of the Hustla Squad Clicc, a large Rialto-based criminal street gang. Defendants Canizales and Windfield were members of a smaller gang called Ramona Blocc that was also based in Rialto. The two gangs were rivals, and shootings between them were commonplace.

Around noon on July 18, 2008, Bolden and Pride saw Canizales at a fast-food restaurant near West Jackson. The encounter led to a brief argument between Pride and Canizales over Canizales's female companion.

Later that same day, Bolden had his own confrontation with Canizales after one member of a group of female friends with whom Bolden was socializing outside his apartment called out to Canizales to join them as he was passing by. Canizales approached and, in what one witness described as a somewhat aggressive manner, asked Bolden "what's up" and where he was from. When Bolden responded that he "didn't bang," Canizales walked away. Bolden provided a somewhat different account to an investigating officer, saying that he believed Canizales was challenging him to a fight, that Bolden responded to that challenge by removing his shirt and approaching Canizales to fight him, and that Canizales walked away once Bolden took off his shirt. According to Bolden's trial testimony, he felt that Canizales had disrespected him and that, once Canizales had left, Bolden immediately went to find Pride to tell him what had happened. Pride quickly took off running after Canizales, with Bolden following at a slower pace behind him. The pursuit was cut short, however, when Pride's mother yelled at him to stop and he returned to where he and Bolden had been talking.

After the encounter with Bolden, Canizales walked to a nearby grocery store, from where he sent someone to summon Ramona Blocc gang leader Windfield. About 8:35 p.m., after joining Canizales outside the grocery store, Windfield spoke briefly with the driver of a vehicle that had pulled up next to them, then patted the car's trunk and said "Jackson Street" as the car drove away. Moments later, Windfield and Canizales headed toward West Jackson, skipping and strutting, throwing gang signs, and yelling "Ramona Blocc."

Finally, in People v. Perez (2010) 50 Cal.4th 222 , 112 Cal.Rptr.3d 310 , 234 P.3d 557 ( Perez ), this court reversed seven of the defendant's eight attempted murder convictions that were based on his firing a single shot from 60 feet away into a group comprised primarily of police officers who were standing in close proximity to one another. In examining the defendant's challenge to his convictions, Perez considered whether the kill zone theory applied. We concluded that the nature and scope of the defendant's attack on the group had not created a zone of fatal harm around them and that Bland did not apply. ( Id . at p. 232, 112 Cal.Rptr.3d 310 , 234 P.3d 557 .)

In the course of concluding that the kill zone theory was not supported by the evidence adduced at trial, our decisions in Stone and Smith briefly summarized the kill zone theory of attempted murder liability. Stone explained, for example, that the kill zone theory "addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, nontargeted, persons." ( Stone , supra, 46 Cal.4th at p. 138, 92 Cal.Rptr.3d 362 , 205 P.3d 272 .) For its part, Smith

In concluding that Wilson correctly upheld the defendants' attempted murder convictions, the Ford decision spoke in terms of the victims being in the "direct line of fire." ( Ford, supra , 625 A.2d at p. 1001.) But its description of the concurrent intent theory, generally, was not so limited. Ford explained that when "[t]he defendant has intentionally created a 'kill zone' to ensure the death of his primary victim, ... the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim." ( Ibid . )

A decade after Ford 's dictum, in Harrison v. State (2004) 382 Md. 477 , 855 A.2d 1220 ( Harrison ), the Maryland Court of Appeals expressly

The Attorney General is correct that in Harrison Maryland's high court observed that "courts have permitted an inference that the defendant created a kill zone when a defendant ... fired multiple bullets at an intended target." ( Harrison, supra , 855 A.2d at p. 1231.) For that proposition, Harrison described the facts of a number of multiple-shot cases that involved application of the kill zone theory. For example, Harrison pointed out that in Wilson, supra , 546 A.2d at page 1042, the defendants had fired " 'multiple bullets' " from two handguns. ( Harrison , at p. 1231.) Likewise in Bland , supra , 28 Cal.4th at page 331, 121 Cal.Rptr.2d 546 , 48 P.3d 1107 , Harrison observed, the defendant and his cohort had fired a " 'flurry of bullets' " at the fleeing car. ( Harrison , at p. 1231.)

But a closer examination of the decisions relied upon by Harrison to illustrate its point reveals that the number of shots fired, although relevant to the inquiry, is not dispositive. Rather, the number of shots fired is simply one of the evidentiary factors to consider when assessing whether the type and extent of the defendant's attack supports instruction on the kill zone theory. (See People v. Vang (2001) 87 Cal.App.4th 554 , 564, 104 Cal.Rptr.2d 704 [the placement of the shots, the number of shots, and the use of high-powered wall-piercing weapons created a reasonable inference that the defendants intended to kill every living being inside the residences at which they shot]; see also

We emphasize that the determination whether substantial evidence supports instruction on the kill zone theory is based on evidence regarding the circumstances of the attack on the primary target, from which the defendant's intent to create a zone of fatal harm may be inferred. Such a determination does not turn on the effectiveness or ineffectiveness of the defendant's chosen method of attack. But whether the inference reasonably could be drawn in this particular case is at least informed by evidence that neither Pride nor Bolden was hit by any of the shots fired by Windfield. This evidence - when viewed in conjunction with evidence regarding the limited number of shots fired, defendants' lack of proximity to Pride, and the openness of the area in which the attack occurred - further diminishes any inference that defendants intended to create a zone of fatal harm around Pride.

Because we conclude that the evidence here is insufficient to support a finding that defendants intended to create a zone of fatal harm, we have no occasion to determine the scope of any such zone given these facts. In cases where substantial evidence exists to support a finding that the only reasonable

In support of the application of the Watson standard, the Attorney General points to our observation in Guiton that when a trial court instructs the jury on an alternative theory that is improper simply because that alternative theory is not factually supported by the evidence adduced at trial, the factual inadequacy is generally something that "the jury is fully equipped to detect." ( Guiton , supra , 4 Cal.4th at p. 1129, 17 Cal.Rptr.2d 365 , 847 P.2d 45 .) For this reason, we stated in Guiton that "instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its

The jury's findings on sentencing enhancement allegations are also relevant to our consideration. The Attorney General asserts that the jury's true findings as to the allegation that defendants acted willfully, deliberately, and with

Bolden further testified that once the shooting had begun, he ran away along the sidewalk in a straight line but that Pride zig-zagged back and forth across the street, at one point running behind a bus that was parked on the same side of the street where Cooksey and her friends were dancing to her car's radio. Bolden could hear the gunfire coming their way, with bullets flying by them and "tingling through the gates." Bolden also believed, however, that Windfield could not control his gun, and he described the bullets as "going everywhere." When Windfield stopped shooting, he and Canizales ran down Willow Avenue, away from the scene.

Neither Pride nor Bolden was hit by gunfire, but one of the shots struck Cooksey in the abdomen and she later died as a result of that injury. Investigators found five expended cartridge casings at the corner of West Jackson and Willow, approximately 100 feet from where Cooksey was shot. The casings were nine millimeter and all of them had been fired from a single semi-automatic gun. A defense investigator determined that the distance from the manhole cover on Willow to where Pride and Bolden stood when the shooting began was 160 feet.

A. The kill zone theory of attempted murder liability

To prove the crime of attempted murder, the prosecution must establish "the

Bland applied what is now commonly referred to as the "kill zone" theory to uphold the attempted murder convictions in that case. The record there showed that the defendant and a fellow gang member approached a car in which a rival gang member was sitting in the driver's seat and opened fire with a .38-caliber handgun, shooting numerous rounds both into the vehicle and at the vehicle as it drove away. The driver was killed and his two passengers, who were not gang members, were wounded. ( Bland, supra , 28 Cal.4th at p. 318, 121 Cal.Rptr.2d 546 , 48 P.3d 1107 .) We concluded that the evidence "virtually compelled" a finding that even if the defendant primarily intended to kill the rival gang member, he also, concurrently, intended to kill the passengers in the car, or, at the least, intended to create a zone of fatal harm. ( Id . at p. 333, 121 Cal.Rptr.2d 546 , 48 P.3d 1107 .)

Bland 's adoption of the kill zone theory meant that a prosecutor charging attempted murder in a multi-victim case had an additional, alternative ground by which to prove the requisite intent to kill. Under appropriate facts, the prosecutor could attempt to show either that the defendant's intent to kill one or more alleged victims arose independently of his actions toward any other victim, or that the defendant's intent to kill an untargeted victim arose concurrently with his intent to kill a primary target.

After the opinion in Bland , this court issued a series of decisions in which the defendant had been convicted of one or more counts of attempted murder based on the act of shooting a single bullet in the direction of two or more individuals. In each of these cases, we had occasion to discuss the application of the kill zone theory and found it either irrelevant or inapplicable to the facts presented.

Subsequently, in People v. Stone (2009) 46 Cal.4th 131 , 92 Cal.Rptr.3d 362 , 205 P.3d 272 ( Stone ), this court agreed with the Court of Appeal that the trial court should not have instructed on the kill zone theory because that theory was not implicated in that case. There, the defendant had been charged with only a single count of attempted premeditated murder for

Justice Werdegar's dissenting opinion in Smith , supra , 37 Cal.4th 733 , 37 Cal.Rptr.3d 163 , 124 P.3d 730 , applied Harrison 's two-part inquiry to reject the Attorney General's argument that the conviction for the attempted murder of the infant in the car seat could be upheld under the kill zone theory. Slightly rephrasing that test, the dissenting opinion asked "(1) whether the fact finder can rationally infer from the type and extent of force employed in the defendant's attack on the primary target that the defendant intentionally created a zone of fatal harm, and (2) whether the nontargeted alleged attempted murder victim inhabited that zone of harm." ( Smith , at pp. 755-756, 37 Cal.Rptr.3d 163 , 124 P.3d 730 .)

Harrison 's two-part inquiry, as rephrased in the dissenting opinion in Smith , accurately reflects this court's decision in Bland and the underpinnings of the kill zone theory. As previously noted, Bland quoted extensively from the Ford decision, on which Harrison was likewise based. And Harrison 's inquiry is consistent with the only decision by this court subsequent to Bland that analyzed the record under the kill zone theory. In concluding that the kill zone theory did not apply, we observed in Perez , supra , 50 Cal.4th 222 , 232, 112 Cal.Rptr.3d 310 , 234 P.3d 557 , that " Bland 's kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack."

We therefore conclude that the kill zone theory for establishing the specific intent to kill required for conviction of 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. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm.

In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory. As the Court of Appeal recently explained in People v. Medina (2019) 33 Cal.App.5th 146 , at page 156, 244 Cal.Rptr.3d 714 ( Medina ), the kill zone theory does not apply where "the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given." We believe our formulation of the kill zone theory here guards against the potential misapplication of the theory, and is consistent with Bland and the general principles discussed above regarding circumstantial evidence and the prosecution's burden of

Relying on language in Stone, supra , 46 Cal.4th 131 , 92 Cal.Rptr.3d 362 , 205 P.3d 272 , the Attorney General and amicus curiae assert that for the kill zone theory to apply it is not necessary that the defendant have a primary target. They have misread our decision. Stone does say that "[a]lthough a primary target often exists and can be identified, one is not required." ( Id . at p. 140, 92 Cal.Rptr.3d 362 , 205 P.3d 272 .) In making that observation, however, our opinion in Stone was not referring to the kill zone theory. Indeed, we concluded that the jury there should not have been given a kill zone instruction because that theory "addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, nontargeted , persons." ( Id . at p. 138, 92 Cal.Rptr.3d 362 , 205 P.3d 272 , italics added and omitted.) In Stone , the intent-to-kill element of the attempted murder charge was established because the evidence supported an inference that the defendant intended to kill someone in the group. In Smith , supra , 37 Cal.4th 733 , 37 Cal.Rptr.3d 163 , 124 P.3d 730 , evidence that the defendant discharged a lethal firearm at two victims who were seated directly in his line of fire supported an inference that he acted with intent to kill both victims. ( Id . at p. 743, 37 Cal.Rptr.3d 163 , 124 P.3d 730 .)

Stone and Smith do make clear there are evidentiary bases, other than the kill zone theory, on which a factfinder can infer an intent to kill for purposes of attempted murder liability that do not depend on a showing that the defendant had a primary target (for example, when a terrorist places a bomb on a commercial airliner intending to kill as many people as possible without intending to kill a specific individual). ( Stone, supra , 46 Cal.4th at p. 140, 92 Cal.Rptr.3d 362 , 205 P.3d 272 ; Smith , supra , 37 Cal.4th at p. 743, 37 Cal.Rptr.3d 163 , 124 P.3d 730 .) When the kill zone theory is used to support an inference that the defendant concurrently intended to kill a nontargeted victim, however, evidence of a primary target is required.

Defendant Windfield asserts that CALCRIM No. 600, the standard instruction on attempted murder that was given in the case, does not adequately explain the kill zone theory. We agree that, when a kill zone instruction is legally warranted and in fact provided, the standard instruction should be revised to better describe the contours and limits of the kill zone theory as we have laid them out here.

The Attorney General argues the evidence is sufficient to support a reasonable inference that defendants intentionally created a zone of fatal harm around Pride because, like in Bland , the five shots Windfield fired at Pride (the primary target) were enough to kill everyone in that

By contrast, here the evidence at trial showed that Windfield attacked his target by firing five bullets from a nine-millimeter handgun at a distance of either 100 or 160 feet away. Moreover, the attack occurred at a block party on a wide city street, not in an alleyway, cul de sac, or some other area or structure from which victims would have limited means of escape. As Bolden described it, the bullets were "going everywhere" and "tingling through the gates" as he and Pride ran down the street away from the gunfire after the first shot was fired.

Even accepting as more credible the prosecution's evidence that Windfield was 100 feet rather than 160 feet away from Pride and Bolden when he first fired in their direction, we conclude that a factfinder could not reasonably infer defendants intended to create a zone of fatal harm around Pride based on the record in this case. The evidence presented here showed

At the same time, however, we also explained in Guiton that a different prejudice inquiry applies in cases "in which 'a particular theory of conviction ... is contrary to law,' or, phrased slightly differently, cases involving a ' legally inadequate theory' ...." ( Guiton , supra , 4 Cal.4th at p. 1128, 17 Cal.Rptr.2d 365 , 847 P.2d 45 .) In determining whether a legally inadequate theory was conveyed to the jury here, we must ask whether there is a " 'reasonable likelihood' " that the jury understood the kill zone theory in a legally impermissible manner. ( People v. Kelly (1992) 1 Cal.4th 495 , 525, 3 Cal.Rptr.2d 677 , 822 P.2d 385 , quoting Estelle v. McGuire (1991) 502 U.S. 62 , 72, 112 S.Ct. 475 , 116 L.Ed.2d 385 .) In doing so, we consider the instructions provided to the jury and counsels' argument to the jury. (See, e.g., People v. Nelson (2016) 1 Cal.5th 513 , 545, 205 Cal.Rptr.3d 746 , 376 P.3d 1178 .)

In light of the instruction provided to the jury regarding the attempted murder of Bolden and the prosecutor's closing argument, the error here cannot be described merely as the presentation of a factually unsupported theory. In relevant part, the instruction informed the jury that to convict defendants of attempted murder it must find "[t]he defendant took a direct but ineffective step toward killing another person" and "intended to kill that person." It further explained that "[a] person may intend to kill a particular victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' " The instruction indicated that the People must prove "that the defendant[s] not only intended to kill Denzell Pride but also either intended to kill Travion Bolden, or intended to kill everyone within the kill zone." Finally, the instruction directed the jury that if it had "a reasonable doubt whether the defendant[s] intended to kill Travion Bolden or intended to kill Denzel Pride by killing everyone in the kill zone," it must return verdicts of not guilty. Beyond its reference to a "particular zone of harm," the instruction provided no further definition of the term "kill zone." Nor did the instruction direct the jury to consider evidence regarding

In light of these facts, we conclude that there is a reasonable likelihood that the jury understood the kill zone instruction in a legally impermissible manner. The court's error in instructing on the factually unsupported kill zone theory, combined with the lack of any clear definition of the theory in the jury instruction as well as the prosecutor's misleading argument, could reasonably have led the jury to believe that it could find that defendants intended to kill Bolden based on a legally inaccurate version of the kill zone theory - that is, that defendants could be found guilty of the attempted murder of Bolden if Windfield shot at Pride knowing there was a substantial danger he would also hit Bolden.

These circumstances make this case similar to People v. Green (1980) 27 Cal.3d 1 , 164 Cal.Rptr. 1 , 609 P.2d 468 ( Green ), a case discussed and analyzed in some detail in this court's decision in Guiton , supra , 4 Cal.4th at pages 1121-1122, 1128-1129, 17 Cal.Rptr.2d 365 , 847 P.2d 45 . In Green , the defendant was convicted of charges including first degree murder, kidnapping, and a kidnapping special circumstance. ( Green , at pp. 11-12, 164 Cal.Rptr. 1 , 609 P.2d 468 .) Under the jury instructions provided, the jury could have based its kidnapping verdict on any one of three distinct segments of asportation, including one incident where the victim travelled only 90 feet. ( Id . at pp. 62-63, 164 Cal.Rptr. 1 , 609 P.2d 468 .) In instructing the jury on the elements of kidnapping, the trial court informed the jury only that asportation must be " 'for a substantial distance, that is, a distance more than slight or trivial.' " ( Id . at p. 68, 164 Cal.Rptr. 1 , 609 P.2d 468 .) This court in Green , after determining that the 90-foot asportation was "insufficient as a matter of law" to support the kidnapping conviction ( id. at p. 67, 164 Cal.Rptr. 1 , 609 P.2d 468 ), held that the instructional error in permitting the jury

In explaining the reasoning underlying the reversal of the kidnapping conviction in Green , we observed in our subsequent

But other evidence leads us to conclude that it is not clear beyond a reasonable doubt that a reasonable jury would have

he judgment of the Court of Appeal is reversed as to the attempted murder convictions regarding Bolden.

We Concur:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

In the present matter, defendants Michael Canizales and KeAndre Windfield were jointly charged and tried before a single jury on counts including first degree murder and two attempted murders. The trial court gave a kill zone instruction in connection with one of the two alleged attempted murder victims. The Court of Appeal concluded that the jury was properly instructed on that theory, and upheld defendants' attempted murder convictions. We conclude there was not sufficient evidence in the record to support an instruction on the kill zone theory, and that the error requires reversal of the attempted murder convictions at issue because those convictions may have been based on the kill zone theory even though that theory was not properly applicable.

Defendants raise the additional argument that instructing pursuant to CALCRIM No. 600, the current standard instruction regarding attempted murder, violated defendants' federal constitutional rights to due process

Direct evidence of intent to kill is rare, and ordinarily the intent to kill must be inferred from the statements and actions of the defendant and the circumstances surrounding the crime. ( People v. Sanchez (2016) 63 Cal.4th 411 , 457, 204 Cal.Rptr.3d 682 , 375 P.3d 812 ; People v. Smith (2005) 37 Cal.4th 733 , 741, 37 Cal.Rptr.3d 163 , 124 P.3d 730 ( Smith ); People v. Lashley (1991) 1 Cal.App.4th 938 , 945-946, 2 Cal.Rptr.2d 629 .)

In Bland, supra, 28 Cal.4th 313 , 121 Cal.Rptr.2d 546 , 48 P.3d 1107 , this court expressly embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. Under that theory, which was first articulated by the Maryland high court in Ford v. State (1993) 330 Md. 682 , 625 A.2d 984 ( Ford ), the nature and scope of the attack directed at a primary victim may raise an inference that the defendant " 'intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.' " ( Bland, at p. 329, 121 Cal.Rptr.2d 546 , 48 P.3d 1107 , quoting Ford , at p. 1000.) Quoting extensively from Ford , the Bland decision illustrated the notion of a concurrent intent to kill with a hypothetical scenario in which the defendant " 'escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or explosive device.' " ( Bland , at p. 330, 121 Cal.Rptr.2d 546 , 48 P.3d 1107 , quoting Ford , at p. 1001.) On such facts, " 'the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death.' " ( Ibid . ) Again quoting from Ford , we explained that " '[w]here the means employed to commit the crime against a primary

In a dissenting opinion in Smith , Justice Werdegar disagreed that the evidence was sufficient to uphold the conviction for the attempted murder of the infant. The dissent concluded that the record did not support the Attorney

As previously explained, the kill zone theory embraced by Bland originated from the concept of concurrent intent first articulated by the Maryland Court of Appeals in Ford, supra, 625 A.2d 984 . Ford 's discussion of the concurrent intent theory was not the basis on which the court resolved the issue presented in that case, however. Rather, it was dictum in a discussion eschewing reliance on a transferred intent theory of liability for inchoate crimes. An earlier decision by the same court, State v. Wilson (1988) 313 Md. 600 , 546 A.2d 1041 ( Wilson ), had applied transferred intent to uphold a conviction for the attempted murder of a bystander who was shot during the defendants' attempt to kill a targeted victim. Ford disapproved the

As we shall explain, we conclude that the evidence in this case was insufficient to warrant the trial court's instruction on the kill zone theory in connection with the count charging the attempted murder of Bolden.

" 'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.]' [Citation.]" ( People v. Saddler (1979) 24 Cal.3d 671 , 681, 156 Cal.Rptr. 871 , 597 P.2d 130 ; accord People v. Clark (2016) 63 Cal.4th 522 , 605, 203 Cal.Rptr.3d 407 , 372 P.3d 811 .)

Here, there was substantial evidence in the record from which it could be inferred that Pride was defendants' primary target in the shooting, and no party argues otherwise. Pride was a known member of Hustla Squad, and Windfield had admitted to a family friend that on the night in question he and Canizales had gone to West Jackson to "get a Hustla Squad" gang member who had killed his cousin. Moreover, Pride and Canizales had engaged in a verbal altercation around noon on the day of the shooting. Finally, the evidence showed that after defendants and their companions had lined up along Willow Avenue facing West Jackson Street, where Pride and Bolden were standing together on the sidewalk, Winfield yelled, "That's that little nigga. Bust" - and then opened fire.

But an instruction on the kill zone theory would have been warranted in this case only if there was substantial evidence in the record that, if believed by the jury, would support a reasonable inference that defendants intended to

Notably, in each of the multi-shot cases cited in Harrison , the defendants opened fire while in close proximity to the area surrounding their intended

As previously discussed, the jury was instructed on two theories of liability in connection with the count charging the attempted murder of Bolden. The jury was told that it could return a verdict of guilt on that count if it found either (1) that defendants intended to kill Bolden specifically, or (2) that defendants intended to kill Pride and at the same time intended to kill everyone "in a particular zone of harm or 'kill zone.' " The Attorney General argues that because the jury could properly have based the attempted murder convictions of Bolden on the first theory, the circumstance that the trial court should not have instructed on the "kill zone" theory because there was insufficient evidence to support that theory does not warrant reversal of those attempted murder convictions. The Attorney General maintains that under this court's decision in People v. Guiton (1993) 4 Cal.4th 1116 , 1130, 17 Cal.Rptr.2d 365 , 847 P.2d 45 ( Guiton ), the applicable harmless error standard that applies in this setting is the ordinary, less demanding standard set forth in

The prosecutor's description of the kill zone theory given during closing argument substantially aggravated the potential for confusion. The prosecutor told the jury that under the kill zone theory, when a defendant is "shooting at someone and

Here, as in Green , the jury was provided an instruction regarding the kill zone theory but no adequate definition to enable the jury to determine whether the theory was properly applicable. This error was one of federal constitutional magnitude. (See People v. Lee (1987) 43 Cal.3d 666 , 672, 238 Cal.Rptr. 406 , 738 P.2d 752 .) In Guiton , we did not establish the precise standard of review for cases governed by Green . ( Guiton , 4 Cal.4th at pp. 1130-1131, 17 Cal.Rptr.2d 365 , 847 P.2d 45 .) Although we observed that in cases like Green "the general rule has been to reverse the conviction because the appellate court is ' "unable to determine which of the prosecution's theories served as the basis for the jury's verdict" ' " ( Guiton , at p. 1130, 17 Cal.Rptr.2d 365 , 847 P.2d 45 ), we also noted that "even this rule has not been not universal." ( Ibid. ) We currently are considering in People v. Aledamat , review granted July 5, 2018, S248105, --- Cal.5th ----, 237 Cal.Rptr.3d 486 , whether the appropriate standard for prejudice in this setting is the test established in Chapman v. California (1967) 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 ( Chapman ), or an even more stringent test requiring reversal unless there is a basis in the record to find that the jury actually relied on the valid theory.

Here, we need not resolve the question posed in Aledamat because we conclude that the error in this case was prejudicial under even the Chapman standard. Applying that test, we ask "whether it is clear beyond a reasonable doubt that a reasonable jury would have rendered the same verdict absent the error." ( People v. Merritt (2017) 2 Cal.5th 819 , 831, 216 Cal.Rptr.3d 265 , 392 P.3d 421 , citing Neder v. United States (1999) 527 U.S. 1 , 18, 119 S.Ct. 1827 , 144 L.Ed.2d 35 .) In making that determination, we examine the entire record. (See Green , supra , 27 Cal.3d at p. 71, 164 Cal.Rptr. 1 , 609 P.2d 468 .) Considering the evidence regarding the shooting, the prosecutor's argument, and the jury's questions during deliberation, we conclude that the attempted murder convictions as to Bolden must be reversed.

Next, the jury instructions and the prosecutor's argument further support a finding of prejudice. As detailed, both the prosecutor's closing argument and the attempted murder instruction given in connection with the charge involving Bolden had the potential to cause confusion regarding the application of the kill zone theory. To be sure, the instructions made clear there were two theories for finding criminal liability with regard to the attempted murder of Bolden and plainly informed the jury that defendants could be liable if they intended to kill Bolden specifically. The prosecutor also emphasized both

Nor are we persuaded that the jury's true findings concerning the separate gang enhancement allegation necessarily leads to the conclusion that the jury did not rely on the kill zone theory. The jury determined that defendants committed the attempted murder of Bolden to benefit the Ramona Blocc gang. Those findings could suggest that the jury accepted the prosecutor's alternate theory that defendants intended to kill both Pride and Bolden because they belonged to the Hustla Squad gang. But the findings could also suggest that, relying on the kill zone theory, the jury found that defendants created a zone of fatal harm in which they intended all persons would be killed for the benefit of the gang.

Having examined the entire record, we conclude that it is not clear beyond a reasonable doubt that a reasonable jury would have returned the same verdict absent the error. Reversal is required on the attempted murder counts regarding Bolden.

B. Defendants' challenges to CALCRIM No. 600

Defendants argue that the paragraph relating to the kill zone theory in CALCRIM No. 600, the standard instruction regarding attempted murder given in their case, erroneously permitted the jury to return a verdict of guilt on the count charging the attempted murder of the nontargeted victim without a finding of the