Mr. Cardona and three friends went to a Springtime backyard party. Also at the party was one Mr. Jauregui, who had a N20 tank from which party goers, after paying a fee, could take a hit. Cardona pulled a gun and tried to rob Jauregui of his money and N20 tank. Jauregui pulled out a knife and began to stab Cardona in the shoulder. Cardona separated himself from Jauregui and opened fire upon Jauregui, who later died of his injuries. Another reveler, one Mr. Carrillo, began to run away from the party upon hearing gunshots. As Carrillo was running, one of Cardona's bullets struck Carrillo in the back.
Cardona was charged with, among other crimes and enhancements, the murder of Jauregui and the attempted murder of Carrillo. A jury convicted Cardona for both these crimes. Cardona appealed.
The Second District reverses the attempted murder conviction for instructional error.
The issue is whether the trial court erred when it gave the "kill zone" instruction for the attempted murder count. The genesis of the issue is the rule that while murder does not require an intent to kill, the crime of attempted murder does. While there is nothing too complex to this principle, it is sometimes complicated by the misapplication of the "transferred intent" doctrine, which does not apply to the crime of attempted murder. However this does not mean that a bystander cannot be a victim of attempted murder. In cases where a defendant intends to kill a group of people in order to kill a specific person, surviving bystanders are victims of attempted murder. If I were to place a bomb on a city bus in order to kill someone I knew would be riding that bus, it would be said that I actually intended to kill everyone who happened to also be on that bus. I would be guilty of attempted murder of the surviving bus riders. The principle is limited to situations where it could reasonably be said the defendant harbored an intent to kill the entire group (although in reality the mental state is most accurately that of indifference).
In this case, the panel feels Cardona did not spray bullets on an entire group that included Carrillo and Jauregui in order to kill Jauregui. Instead Cardona specifically fired at Jauregui. Because there wasn't enough evidence to support a finding that Cardona intended to kill a whole group in order to kill Jauregui, the "kill zone" instruction should not have been given. As the panel finds the instruction likely prejudiced Cardona, his attempted murder conviction is reversed and the case remanded for the state to decide whether to retry him on that count (he is already doing life without the possibility of parole on the murder count).
Cardona (and the rest of mankind) would have been better off had he just gone to Vons and bought a can of Reddi-Whip.
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