People v. Sek
Annotate this CaseBased on firing shots at an occupied car, Sek and My were convicted of two counts of attempted murder and related crimes. The court of appeal reversed in part, holding that the trial court prejudicially erred by giving the jury CALJIC No. 8.66.1, a legally erroneous and misleading instruction on the “kill zone” theory of liability for attempted murder, and erred by imposing indeterminate life sentences for the attempted murder convictions when the information did not allege that the attempted murders were willful, deliberate, and premeditated. The kill zone theory does not apply if the evidence shows only that the defendant intended to kill a particular targeted individual but attacked that individual in a manner that subjected other nearby individuals to a risk of fatal injury. Nor does it apply if the evidence merely shows, in addition, that the defendant was aware of the lethal risk to the nontargeted individuals and did not care whether they were killed during the attack on the targeted individual. The theory applies only if the evidence shows that the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted individual was located.
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