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California Supreme Court:
‘Kill-Zone’ Does Not Extend to Victims Not Visible to Shooter
Opinion Says Theory Does Not Apply to Establish Specific Intent to Kill Unseen Victims Who Were Inside Residences During Drive-by Shooting of Attached Carport
By Kimber Cooley, associate editor
The California Supreme Court yesterday reversed on direct appeal a man’s convictions on six counts of attempted premeditated murder in connection with two separate 2003 shootings, finding that recent changes to the felony murder rule undermine the judgments.
Five of the attempted murder charges were tried, at least in part, based on the so-called “kill-zone” theory of murder liability—in which an intent to kill during a drive-by shooting can be inferred if the nature of the attack shows that the defendant intended to ensure harm to the primary victim by injuring everyone in that person’s vicinity.
In a unanimous opinion, authored by Justice Goodwin H. Liu, the court declared that “[w]e…decline to extend the rule…to permit reliance on the kill zone theory” to two victims who were shot while inside their residences where they were out of sight to the shooters, who were targeting those socializing in an attached carport, and the weapon used was a nine-millimeter handgun.
Yesterday’s opinion affirms a first-degree murder conviction, as well as an accompanying special circumstance finding relating to a death caused by an earlier shooting.
Two Shootings
At issue is whether the defendant, Mao Hin, could be held liable for first-degree murder and attempted premeditated murder relating to two shootings that occurred a month apart in 2003.
In October of that year, Hin and codefendant Rattanak Kak were walking together in American Legion Park in Monterey Park when they came across Debra Pizano and Alfonso Martinez. Kak pulled a gun on Pizano and Martinez while Hin told them to “give me all your money.”
After turning over their money, they were each shot as they followed instructions to walk further into the grounds of the park. Martinez died at the scene and Pizano survived, suffering gunshot wounds to the head and leg.
On Nov. 8, 2003, 13 people were gathered in a residential carport when between 15 to 30 shots were fired from a car slowly passing the area. Hin admitted to being the driver of the vehicle.
Three people were shot inside the carport and two more, Sobin Pen and Sokhon Hing, were hit by gunfire while inside attached residences.
Hin was convicted of the first-degree murder of Martinez, the attempted premeditated murder of Pizano and of the five people wounded during the drive-by shooting, and other related charges. Gang allegations were also found true as were two special circumstances for killing during a robbery and kidnapping and while participating in a criminal street gang.
Felony Murder Rule
Following Hin’s trial, the Legislature amended Penal Code §§188 and 189, in order to eliminate the natural and probable consequences doctrine for murder and to heighten the requirements for felony murder.
These amendments, and subsequent ones clarifying that the amendments applied equally to attempts, provide that a defendant who was neither the actual killer nor acted with the intent to kill can be liable for murder only if the defendant was a “major participant in the underlying felony and acted with reckless indifference to human life.”
Hin’s jury was instructed that it could convict him of attempted murder for both shootings on two theories of derivative liability—directly aiding and abetting attempted murder with an intent to kill or under the now-defunct natural and probable consequences theory based on lesser target felonies.
The defendant challenges his convictions as invalid under current law.
Liu explained:
“[I]t is undisputed the jury was presented with both the valid theory that Hin acted with intent to kill and invalid theories of felony murder and of natural and probable consequences as a basis to find him guilty of murder and attempted premeditated murder. ‘Where a jury is instructed on alternate theories of liability, one legally valid and one legally invalid, a federal constitutional error has occurred.’…Accordingly, we ‘must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[] the error was harmless beyond a reasonable doubt.’ ”
The Office of the Attorney General concedes that the five counts of attempted murder related to the drive-by shooting must be reversed because the invalid theory might have contributed to the guilty verdict, but the parties dispute whether these charges may be retried.
Liu noted that “a defendant who successfully appeals from a judgment of conviction may be tried a second time for the same offense unless the conviction is set aside for insufficiency of the evidence.” Hin concedes that there was sufficient evidence to support the verdict of the attempted murder of Pizano but not as to the other victims.
As to the attempted murder of Pen and Hing, Liu said “we conclude the evidence was insufficient to support a conviction under the only valid theory on which Hin was tried: direct aiding and abetting.”
Kill-Zone Theory
Citing the testimony at trial, the justice remarked that “[t]he evidence was sufficient to establish that…Hin drove Kak and [another man] to a residence in a rival gang’s territory, slowed down to allow Kak to shoot, then made a U-turn to drive past the residence again so Kak could continue to shoot” but said that “[t]here remains the question of whether the evidence was sufficient to establish the intent to kill those victims who were… inside the residences.”
He pointed to case law which identified relevant factors in “kill-zone” cases, such as the type of weapon used, the number of shots fired, and the proximity of the victims to the primary target, and wrote:
“Applying these factors, the facts here are, in some respects, more suggestive of kill-zone liability than those in [that case]….Here, witnesses testified that there were between 15 and 30 shots fired that evening 30 feet away from the entrance to the enclosed carport (and less than 45 feet away from the adjacent residence) from multiple guns, at least one of which was evidently capable of penetrating into the residences behind the carport.”
He continued:
“[T]he jury was instructed it could rely on the kill zone theory as to the two victims who were injured inside the residences adjoining the carport. We have not had an occasion to extend [the kill-zone theory] to reach victims within a residence or otherwise not visible to the shooter.”
Distinguishing jurisprudence involving shots fired from an AK series assault rifle, he concluded:
“[T]here was no evidence that the shots were specifically targeting the residence, nor was there evidence that the shooters used [a] type of high-powered weapon….We…decline to extend the rule…to permit reliance on the kill zone theory on these facts. Instead, we hold that the evidence was insufficient to establish an intent to kill…Pen…and…Hing…under the properly instructed theory of direct aiding and abetting.”
However, he declared “[w]e decline to decide whether double jeopardy bars retrial of these two counts,” leaving it for the trial court to decide. The court held that “[r]etrial is permitted, however, on the remaining counts of attempted murder.”
Park Shooting
As to the murder of Martinez, Liu opined:
“We hold that on the facts of this case, the jury’s findings on the felony-murder and gang-murder special circumstances in combination render the instructional errors harmless beyond a reasonable doubt and demonstrate that the jury made the findings necessary to convict Hin on a valid theory of felony murder. We further hold that the evidence was sufficient for a jury to find that Hin intended to kill Martinez.”
Continuing, he wrote:
“As to this special circumstance, the jury was instructed in relevant part: ‘To find that the special circumstance “intentional killing by an active street gang member” is true, it must be proved: [¶] 1. The defendant intentionally killed the victim; or with the intent to kill, aids and abets, counsels, commands, induces, solicits, requests, or assists the actual killer.’ The jury’s true finding as to this special circumstance means it necessarily found that Hin acted ‘with the intent to kill’ when he participated in the robbery with Kak.”
Turning to the attempted murder, the court rejected the prosecution’s argument that, because Pizano was shot at the same time and place as Martinez, the intent to kill applies equally to both victims. He reasoned:
“Although the jury’s true finding on the gang-murder special circumstance necessarily includes a finding that Hin intended to kill Martinez, it is an inferential step to conclude that Hin also intended to kill Pizano….Such inferences may be reasonable. But it is not ‘impossible, on the evidence, for the jury to find [that Hin intended to kill Martinez] without also finding’ both that he intended to kill Pizano….”
Evidentiary Ruling
A song, titled “Bang Bang,” was introduced during both the penalty and guilt phases. A CD containing the track, which includes violent lyrics, was found in Hin’s bedroom.
Liu’s opinion declined to address an issue that has divided the Courts of Appeal—whether newly enacted Evidence Code §352.2, which provides that certain mandatory factors must be weighed in determining whether forms of “creative expression” may be admitted as evidence, applies retroactively. He declared:
“Here we need not reach the question of whether Evidence Code section 352.2 is an ameliorative change in the law that applies retroactively to nonfinal convictions…because we find that the court’s admission of the ‘Bang Bang’ song at the guilt and penalty phases was an abuse of discretion under the law as it stood at the time of Hin’s trial, specifically Evidence Code section 352. We conclude that this error was harmless….”
The case is People v. Hin, 2025 S.O.S. 299.
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