People v. Canizales ( 2019 )


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  •         IN THE SUPREME COURT OF
    CALIFORNIA
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    MICHAEL RAFAEL CANIZALES et al.,
    Defendants and Appellants.
    S221958
    Fourth Appellate District, Division Two
    E054056
    San Bernardino County Superior Court
    FVA1001265
    June 24, 2019
    Chief Justice Cantil-Sakauye authored the opinion of the court,
    in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger and
    Groban concurred.
    PEOPLE v. CANIZALES
    S221958
    Opinion of the Court by Cantil-Sakauye, C. J.
    This case concerns whether the trial court properly
    instructed the jury on the so-called kill zone theory, under which
    a defendant may be convicted of the attempted murder of an
    individual who was not the defendant’s primary target. As we
    shall explain, we conclude that a jury may convict a defendant
    under the kill zone theory only when the jury finds that: (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.
    We caution, however, that trial courts must be extremely
    careful in determining when to permit the jury to rely upon the
    kill zone theory. The kill zone theory permits a jury to infer a
    defendant’s intent to kill an alleged attempted murder victim
    from circumstantial evidence (the circumstances of the
    defendant’s attack on a primary target). But, under the
    reasonable doubt standard, a jury may not find a defendant
    acted with the specific intent to kill everyone in the kill zone if
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    the circumstances of the attack would also support a reasonable
    alternative inference more favorable to the defendant. (See
    CALCRIM No. 225.) Permitting reliance on the kill zone theory
    in such cases risks the jury convicting a defendant based on the
    kill zone theory where it would not be proper to do so. As past
    cases reveal, there is a substantial potential that the kill zone
    theory may be improperly applied, for instance, where a
    defendant acts with the intent to kill a primary target but with
    only conscious disregard of the risk that others may be seriously
    injured or killed. Accordingly, in future cases trial courts should
    reserve the kill zone theory for instances in which there is
    sufficient evidence from which the jury could find that the only
    reasonable inference is that the defendant intended to kill (not
    merely to endanger or harm) everyone in the zone of fatal harm.
    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 because it led the
    2
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    jurors to believe they could convict defendants of the attempted
    murder of one victim without finding the requisite intent to kill.
    In light of our conclusion that the judgment must be reversed
    because the evidence was insufficient to support an instruction
    on the kill zone theory, we need not address defendants’
    constitutional challenge to CALCRIM No. 600.
    I. FACTS AND PROCEDURAL BACKGROUND
    The 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
    3
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.”
    Meanwhile, people had begun to congregate on the 300
    block of West Jackson to prepare for the neighborhood block
    party that night. By nightfall, there were approximately 10 to
    30 or more people outside on the sidewalks and in the street,
    talking, dancing, and partying. Twenty-six-year-old Leica
    Cooksey was with a group of young women who had gathered
    around her parked car, dancing to the music on the car’s radio.
    The testimony at trial showed slightly different accounts
    of where the victims were located prior to the shooting. For
    example, Bolden testified that he and Pride were standing in the
    street in front of Pride’s apartment on the same side of the street
    as Cooksey and her friends, who were about 20 feet away. Other
    4
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    testimony indicated that Cooksey’s group was on the side of the
    street opposite Pride’s apartment.
    Bolden testified that as he talked with Pride he noticed
    that an unfamiliar car had passed them several times and then
    parked on Willow Avenue, which runs perpendicular to the east
    side of West Jackson’s 300 hundred block. Bolden and Pride
    then saw five or six men, including Canizales and Windfield,
    line up shoulder to shoulder near a manhole cover at the
    intersection between West Jackson and Willow, facing West
    Jackson.
    The evidence at trial provided somewhat different
    versions of what happened next. Bolden testified that he
    observed Windfield pull a gun out of his waistband and
    attempted to pass it to Canizales, who did not take it. Bolden
    then heard Windfield first say either, “That’s that little nigga,”
    or, “There goes those little niggas right there,” and then “Bust.”1
    Sparks and the sound of gunfire followed. According to Bolden,
    after Windfield had fired the first shot, Pride grabbed Bolden
    and they ran away from the direction of the gunfire. Pride
    testified, however, that he was standing in front of his
    apartment when the first shot was fired, and that he ran to his
    young nieces and hurried them inside for safety.
    Bolden had provided still another version of the shooting
    in a recorded interview by Detective Williams that occurred two
    years after the shooting and about one year prior to trial. In
    that account, Bolden told the officer he was standing inside a
    West Jackson apartment building’s front yard gate smoking
    marijuana with some neighbors when he noticed an unfamiliar
    1
    “Bust” is a slang term for “shoot.”
    5
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    car pass by several times. When the car’s occupants got out of
    the vehicle on Willow Avenue and started walking, he heard
    Windfield say, “That’s the little nigga right there.” The officer
    asked Bolden whether Windfield was referring to him (Bolden).
    Bolden replied that they had seen Pride because Pride “gave it
    away when he started runnin’ ” and that was when the
    “gunshots came on.” Pointing to a location on the investigator’s
    map, Bolden said that Pride had been talking on his phone while
    standing near a parked car that was about four car lengths away
    from him, closer to Willow. When Bolden heard someone yell
    “bust,” he came out from the gate to find Pride. Moments later,
    Bolden saw a gunshot flash and started running.
    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
    6
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    that the distance from the manhole cover on Willow to where
    Pride and Bolden stood when the shooting began was 160 feet.
    Detectives spoke with Canizales and Windfield shortly
    after the shootings but the investigation stalled and no charges
    were filed. Meanwhile, Pride and Bolden had left the area and
    could not be located. About one year after the incident, however,
    Windfield told a family friend that he and Canizales had gone to
    West Jackson to shoot the Hustla Squad member who had killed
    his cousin. Windfield explained that a girl got in the way of his
    gunfire while the person he was shooting at ran away. Four
    months after that conversation, Windfield’s friend reported the
    confession to police, and the investigation reopened. Although
    officers had difficulty locating Bolden and Pride, they eventually
    obtained statements from them describing the incident and
    implicating Canizales and Windfield in the shooting.
    Canizales and Windfield were charged by amended
    information with the deliberate, premeditated murder of
    Cooksey, the deliberate, premeditated attempted murders of
    Bolden and Pride, and street terrorism. (Pen. Code, §§ 187,
    subd. (a); 664, subd. (a) and 187, subd. (a); 186.22, subd. (a).)2
    The amended information also alleged that Canizales and
    Windfield committed the crimes to benefit a street gang, and
    that a principal personally discharged a firearm causing death,
    within the meaning of sections 186.22, subdivision (b), and
    12022.53, subdivisions (b), (c), (d), and (e)(1). Neither Canizales
    nor Windfield testified at trial. At the close of evidence, the
    2
    All further statutory references are to the Penal Code
    unless otherwise indicated.
    7
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    court dismissed the street terrorism charge and several of the
    firearm enhancements in the interest of justice.
    The court instructed the jury on attempted murder using
    CALCRIM No. 600.3 During closing argument, which occurred
    after the court had given its instructions, the prosecutor offered
    two theories of defendants’ liability for the attempted murder of
    Bolden. She argued first that the evidence showed Windfield
    was shooting at, and attempting to kill, both Pride and Bolden,
    presumably because they were members of the Hustla Squad
    gang. She then described the concept of the kill zone. The
    prosecutor told the jury that “[i]f they’re shooting at someone
    and people are within the zone that they can get killed, then
    you’re responsible for attempted murder as to the people who
    are within the zone of fire. Okay. So there were times when
    [Bolden] told you that he was with [Pride], near [Pride], close
    proximity to [Pride]. So they’re both within the zone of fire, the
    range [of] the bullets that are coming at them.”
    3
    The instruction provided, as relevant here, that the
    prosecution had to prove two elements to prove attempted
    murder: “1. The defendant took a direct but ineffective step
    toward killing another person; and 2. The defendant intended to
    kill that person [¶] . . . [¶] 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.’ In order to
    convict a defendant of the attempted murder of . . . Bolden, the
    People must prove that the defendant not only intended to
    kill . . . Pride but also either intended to kill . . . Bolden, or
    intended to kill everyone within the kill zone. If you have a
    reasonable doubt whether the defendant intended to
    kill . . . Pride by killing everyone in the kill zone, then you must
    find the defendant not guilty of the attempted murder.”
    8
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    As relevant here, the jury found both defendants guilty of
    the first degree murder of Cooksey and the premeditated
    attempted murders of Bolden and Pride, and found as to all
    three counts that the offenses were committed for the benefit of
    a criminal street gang.       The Court of Appeal reversed
    Canizales’s first degree murder conviction of Cooksey in light of
    this court’s decision in People v. Chiu (2014) 
    59 Cal. 4th 155
    (Chiu),4 but otherwise affirmed the judgments. In upholding the
    attempted murder convictions, the Court of Appeal expressly
    disagreed with the formulation of the kill zone theory’s
    requirements set forth in People v. McCloud (2012)
    
    211 Cal. App. 4th 788
    (McCloud).
    We granted review in light of the conflict in the Courts of
    Appeal regarding the evidentiary basis for applying, and
    instructing on, the kill zone theory for establishing the intent to
    kill element of attempted murder.
    II. DISCUSSION
    A. The kill zone theory of attempted murder
    liability
    To prove the crime of attempted murder, the prosecution
    must establish “the specific intent to kill and the commission of
    a direct but ineffectual act toward accomplishing the intended
    killing.” (People v. Lee (2003) 
    31 Cal. 4th 613
    , 623.) When a
    4
    Chiu held that an aider and abettor’s liability for first
    degree premeditated murder cannot be based on the natural and
    probable consequences doctrine. 
    (Chiu, supra
    , 59 Cal.4th at
    pp. 158-159.) In reversing Canizales’s conviction, the Court of
    Appeal explained that it was unable to conclude beyond a
    reasonable doubt that the jury based its first degree murder
    verdict on the legally valid theory that he aided and abetted
    premeditated murder.
    9
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    single act is charged as an attempt on the lives of two or more
    persons, the intent to kill element must be examined
    independently as to each alleged attempted murder victim; an
    intent to kill cannot be “transferred” from one attempted murder
    victim to another under the transferred intent doctrine. (People
    v. Bland (2002) 
    28 Cal. 4th 313
    , 327-328 (Bland).)
    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; People v. Smith
    (2005) 
    37 Cal. 4th 733
    , 741 (Smith); People Lashley (1991)
    
    1 Cal. App. 4th 938
    , 945-946.)
    In 
    Bland, supra
    , 
    28 Cal. 4th 313
    , 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
    (Md. 1993) 
    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, 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, 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
    10
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    the means employed to commit the crime against a primary
    victim create a zone of harm around that victim, the factfinder
    can reasonably infer that the defendant intended that harm to
    all who are in the anticipated zone.’ ” (Ibid.)
    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.) 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.)
    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
    11
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.
    
    Smith, supra
    , 
    37 Cal. 4th 733
    , declined to analyze the
    defendant’s sufficiency of the evidence claim under the kill zone
    rationale, finding no merit to the defendant’s assertion that all
    single-bullet cases involving more than one victim must be
    assessed under that theory. Examining the totality of the
    circumstances shown by the evidence, our decision in Smith
    concluded instead that the defendant was properly convicted of
    two counts of attempted murder for having fired at close range
    a single bullet at a former girlfriend seated in the front seat of
    her car and the infant who was in a car seat immediately behind
    her, both of whom were in his direct line of fire. (Id. at pp. 744-
    746.)
    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 General’s
    argument that the defendant’s firing of a single bullet in the
    direction of his former girlfriend created a zone of fatal harm
    around her such that it might be inferred that he intended to
    ensure her death by killing the infant as well. (Id. at pp. 755-
    757 (dis. opn. of Werdegar, J.).)
    Subsequently, in People v. Stone (2009) 
    46 Cal. 4th 131
    (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
    12
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    attempted premeditated murder for shooting at someone who
    was standing in a group of 10 rival gang members about 60 feet
    away from the defendant. (Id. at pp. 135, 138.) We found the
    instructional error on the theory harmless, however, and upheld
    the attempted murder conviction, notwithstanding the
    prosecutor’s concession that he had not proved that the
    defendant specifically intended to kill the victim named in the
    charging document. In affirming the judgment, we held that a
    defendant who fires into a group of people intending to kill one
    of them, but not knowing or caring which one he or she kills, can
    be convicted of attempted murder because there is no
    requirement that a defendant intend to kill a specific target, so
    long as he or she intended to kill someone. (Id. at pp. 139-140.)
    We noted that although “difficulties can arise . . . regarding how
    many attempted murder convictions are permissible” in some
    cases, we were not required to confront that difficulty in Stone
    because the defendant there was charged with only one count of
    attempted murder. (Id. at pp. 140-141, citing 
    Bland, supra
    ,
    28 Cal.4th at pp. 328-329.)
    Finally, in People v. Perez (2010) 
    50 Cal. 4th 222
    (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.)
    In the course of concluding that the kill zone theory was
    not supported by the evidence adduced at trial, our decisions in
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    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.) For its part, Smith pointed out that “Bland simply
    recognizes that a shooter may be convicted of multiple counts of
    attempted murder on a ‘kill zone’ theory where the evidence
    establishes that the shooter used lethal force designed and
    intended to kill everyone in an area around the targeted victim
    (i.e., the ‘kill zone’) as the means of accomplishing the killing of
    that victim. Under such circumstances, a rational jury could
    conclude beyond a reasonable doubt that the shooter intended
    to kill not only his targeted victim, but also all others he knew
    were in the zone of fatal harm.” (
    Smith, supra
    , 37 Cal.4th at
    pp. 745-746.)
    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 (Md. 1988) 
    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 reasoning of Wilson. But the court in Ford justified Wilson’s
    result on the ground that the convictions in Wilson could be
    14
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    upheld on a theory of concurrent intent. That is, the record
    supported an inference of the defendants’ concurrent intent to
    kill both the primary victim and the bystander based on
    evidence that the defendants had fired numerous shots toward
    both victims. (Ford, at p. 1001.) As Ford explained, the
    factfinder could conclude that by attempting to kill their target
    by firing multiple bullets from two handguns, the defendants
    intended to create a “ ‘kill zone’ ” around the target from which
    it could be inferred that the defendants intended to kill everyone
    in the direct path of their bullets. (Ibid.) Ford found that the
    bystander was “obviously” in the “direct line of fire and the
    evidence permitted finding concurrent intent to kill everyone in
    the path of the bullets.” (Ibid.)
    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 (Md.
    2004) 
    855 A.2d 1220
    (Harrison), the Maryland Court of Appeals
    expressly adopted the concurrent intent theory as a basis of
    liability for crimes such as attempted murder. Drawing on
    language in Ford, the Harrison decision observed that the
    “essential questions” in a concurrent intent analysis focus “on
    the ‘means employed to commit the crime [against the primary
    15
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    victim]’ and the ‘zone of harm around [that] victim.’ ” (Harrison,
    at p. 1230.)
    Justice Werdegar’s dissenting opinion in 
    Smith, supra
    ,
    
    37 Cal. 4th 733
    , 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.)
    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, that
    “Bland’s kill zone theory of multiple attempted murder is
    necessarily defined by the nature and scope of the attack.”
    The two-part standard for application of the kill zone
    theory set forth in Justice Werdegar’s dissenting opinion in
    Smith thus provides a helpful basis for a clear and workable
    test. But the potential for the misapplication of the kill zone
    theory, as evidenced by prior appellate cases, illustrates the
    importance of more clearly defining the kill zone theory in future
    16
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    cases. The kill zone theory looks to circumstantial evidence to
    support a permissive inference regarding a defendant’s intent.
    This is not unusual. As we have described on many occasions,
    intent to kill often must be inferred from circumstantial
    evidence surrounding the crime. (See, e.g., People v. 
    Sanchez, supra
    , 63 Cal.4th at p. 457.) And when the prosecution’s theory
    substantially relies on circumstantial evidence, a jury must be
    instructed that it cannot find guilt based on circumstantial
    evidence when that evidence supports a reasonable conclusion
    that the defendant is not guilty. (People v. Bender (1945)
    
    27 Cal. 2d 164
    , 175, abrogated on another ground by People v.
    Lasko (2000) 
    23 Cal. 4th 101
    , 110; see also CALCRIM No. 225
    [directing jury that circumstantial evidence may support
    required intent if “the only reasonable conclusion supported by
    the circumstantial evidence” is that defendant had the required
    intent, and that jury must conclude intent was not proved when
    there are “two or more reasonable conclusions from the
    circumstantial evidence, and one of those reasonable
    conclusions supports” a determination that defendant did not
    have the required intent].) As past cases demonstrate, however,
    even when a jury is otherwise properly instructed on
    circumstantial evidence and reasonable doubt, the potential for
    misapplication of the kill zone theory remains troubling.
    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
    17
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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 (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
    18
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    evidence and the prosecution’s burden of proving each element
    of an offense beyond a reasonable doubt.5
    We emphasize that going forward trial courts must
    exercise caution when determining whether to permit the jury
    to rely upon the kill zone theory. Indeed, we anticipate there
    will be relatively few cases in which the theory will be applicable
    and an instruction appropriate. Trial courts should tread
    carefully when the prosecution proposes to rely on such a theory,
    and should provide an instruction to the jury only in those cases
    where the court concludes there is sufficient evidence to support
    a jury determination that the only reasonable inference from the
    circumstances of the offense is that a defendant intended to kill
    everyone in the zone of fatal harm. The use or attempted use of
    force that merely endangered everyone in the area is insufficient
    to support a kill zone instruction.
    Relying on language in 
    Stone, supra
    , 
    46 Cal. 4th 131
    , the
    Attorney General and amicus curiae assert that for the kill zone
    theory to apply it is not necessary that the defendant have a
    5
    Past appellate court opinions articulating the kill zone
    theory are incomplete to the extent that they do not require a
    jury to consider the circumstances of the offense in determining
    the application of the kill zone or imply that a jury need not find
    a defendant intended to kill everyone in the kill zone as a means
    of killing the primary target, even if their description of the
    theory is otherwise consistent with our opinion here. (See, e.g.,
    
    Medina, supra
    , 33 Cal.App.5th at p. 170; People v. Stevenson
    (2018) 25 Cal.App.5th 974, 985-987; People v. Windfield (2016)
    3 Cal.App.5th 739, 754-761; People v. Falaniko (2016)
    1 Cal.App.5th 1234, 1243-1244; People v. Cardona (2016) 
    246 Cal. App. 4th 608
    , 614-615; 
    McCloud, supra
    , 211 Cal.App.4th at
    pp. 798-800.)
    19
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.) 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, 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
    , 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.)
    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; 
    Smith, supra
    , 37 Cal.4th at p. 743.)
    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. As we
    stated in Bland, the kill zone theory is one of concurrent intent
    based on a reasonable inference a jury may draw under the facts
    of a particular case. (
    Bland, supra
    , 28 Cal.4th at pp. 330-331,
    20
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    331, fn. 6.) As the Court of Appeal correctly observed in 
    Medina, supra
    , 33 Cal.App.5th at page 155, “[w]ithout a primary target,
    there cannot be concurrent intent because there is no primary
    intent to kill as to which the intent to kill others could be
    concurrent.”
    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.
    1. The kill zone instruction was not sufficiently
    supported in the present matter
    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; accord People v.
    Clark (2016) 
    63 Cal. 4th 522
    , 605.)
    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
    21
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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 kill everyone
    within the “kill zone.” To qualify, the record would need to
    include (1) evidence regarding the circumstances of defendants’
    attack on Pride that would support a reasonable inference that
    defendants intentionally created a zone of fatal harm around
    him, and (2) evidence that Bolden was located within that zone
    of fatal harm. Taken together, such evidence would permit a
    finding that defendants harbored the requisite intent to kill
    Bolden because he was within the zone of fatal harm that
    defendants intended to create around Pride.
    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 zone. We conclude, however, that
    the evidence concerning the circumstances of the attack
    (including the type and extent of force used by Windfield) was
    not sufficient to support a reasonable inference that defendants
    intended to create a zone of fatal harm around a primary target.
    22
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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, 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 [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 Washington
    v. United States (D.C. Ct.App. 2015) 
    111 A.3d 16
    , 24 [the court’s
    concurrent intent instruction was supported by evidence that
    the defendant stood 21 feet away and fired 10 gunshots at four
    people in close proximity to one another, hitting three of them].)
    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 target. In Bland, for example, the
    23
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    defendant approached the driver’s side of the victims’ car and
    started shooting into the vehicle, then fired at the car as it
    started to drive away. (
    Bland, supra
    , 28 Cal.4th at p. 318.)
    Similarly, in Wilson, the defendants engaged in a heated verbal
    argument with a man. After threatening to pistol whip him, the
    defendants then drew their handguns and opened fire on their
    target, missing him but hitting a bystander who was near both
    defendants and their target. (
    Wilson, supra
    , 546 A.2d at
    p. 1042.)
    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
    that from a substantial distance Windfield shot five bullets in
    the direction of a target who immediately ran down a city street
    after the first shot was fired. This evidence was insufficient to
    support instruction on the kill zone theory.
    24
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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 inference is
    that a zone of fatal harm has been created, the jury is to consider
    the circumstances of the attack, including the type and extent of
    force used during the attack, to determine the scope of that zone
    and whether the alleged victim was within the zone.6
    6
    Defendant Canizales additionally argues that an aider
    and abettor cannot be held liable for attempted murder under
    the kill zone theory because doing so would improperly require
    the jury to attribute the shooter’s intent to create a zone of fatal
    harm to the aider and abettor. Because Canizales did not raise
    this claim until he filed his notice of supplemental authorities,
    25
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    2. The error in instructing on the kill zone theory was
    prejudicial
    We have concluded above that there was insufficient
    evidence in the record to support the trial court’s instruction on
    the kill zone theory. For the reasons provided below, we
    conclude that the court’s error in instructing on that theory
    requires reversal.
    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 (Guiton), the applicable
    harmless error standard that applies in this setting is the
    ordinary, less demanding standard set forth in People v. Watson
    (1956) 
    46 Cal. 2d 818
    , 836-837, and that under that standard the
    trial court error was not prejudicial.
    In support of the application of the Watson standard, the
    Attorney General points to our observation in Guiton that when
    and because we reverse his attempted murder conviction on
    other grounds, we do not address his claim here.
    26
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.) 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 verdict on
    the valid ground, or on both the valid and the invalid ground,
    there would be no prejudice, for there would be a valid basis for
    the verdict. . . . [T]he appellate court should affirm the judgment
    unless a review of the entire record affirmatively demonstrates
    a reasonable probability that the jury in fact found the
    defendant guilty solely on the unsupported theory.” (Id. at
    p. 1130.)
    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.) 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, quoting Estelle v. McGuire (1991) 
    502 U.S. 62
    , 72.) 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.)
    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
    27
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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 the circumstances
    of defendants’ attack when determining whether defendants
    “intended to kill Denzel Pride by killing everyone in the kill
    zone.”
    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
    people are within the zone that they can get killed, then [the
    defendant] is responsible for attempted murder as to the people
    who are within the zone of fire.” Pointing to Bolden’s testimony
    that he was at times in close proximity to Pride, the prosecutor
    argued that they were “both within the zone of fire, the range
    [of] the bullets that are coming at them.” The prosecutor’s
    28
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    definition of the kill zone as an area in which people “can get
    killed” or are in a “zone of fire” was significantly broader than a
    proper understanding of the theory permits.              Indeed, it
    essentially equated attempted murder with implied malice
    murder. (See 
    Medina, supra
    , 33 Cal.App.5th at p. 155 [holding
    that allowing the kill zone instruction based on an asserted
    natural and probable consequence that anyone within a zone of
    harm could die “replaces the specific intent/express malice
    required for an attempted murder conviction with conscious
    disregard for life/implied malice, which Bland makes clear
    cannot support an attempted murder conviction”].) Thus, the
    prosecutor’s argument had the potential to mislead the jury to
    believe that the mere presence of a purported victim in an area
    in which he or she could be fatally shot is sufficient for
    attempted murder liability under the kill zone theory. So
    misled, the jury might well have found factual support for what
    was effectively an “implied malice” theory of attempted murder
    without detecting the legal error. (See 
    Guiton, supra
    , 4 Cal.4th
    at p. 1128.)
    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.
    29
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    These circumstances make this case similar to People v.
    Green (1980) 
    27 Cal. 3d 1
    (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. In Green, the defendant was
    convicted of charges including first degree murder, kidnapping,
    and a kidnapping special circumstance. (Green, at pp. 11-12.)
    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.) 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.) 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), held that the instructional error in
    permitting the jury to base its verdict on that asportation was
    prejudicial and required reversal of the kidnapping conviction
    and the related kidnapping special circumstance (id. at p. 74).
    In explaining the reasoning underlying the reversal of the
    kidnapping conviction in Green, we observed in our subsequent
    decision in Guiton that whereas “a jury would be well equipped
    to analyze the evidence and determine whether the victim had
    been asported, and to determine the distance of the
    asportation[,] [t]he jury would, however, not be equipped to
    determine whether, as a matter of law, 90 feet is insufficient. A
    reasonable jury, given no specific guidance regarding the
    required distance [citation], could have found 90 feet to be
    sufficient, and could have relied on that segment of asportation
    in its verdict. That being the case, reversal was appropriate.”
    
    (Guiton, supra
    , 4 Cal.4th at p. 1128.)
    30
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.) In
    Guiton, we did not establish the precise standard of review for
    cases governed by Green. (Guiton, 4 Cal.4th at pp. 1130-1131.)
    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), 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, whether the appropriate
    standard for prejudice in this setting is the test established in
    Chapman v. California (1967) 
    386 U.S. 18
    (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, citing Neder v.
    United States (1999) 
    527 U.S. 1
    , 18.)          In making that
    determination, we examine the entire record. (See 
    Green, supra
    ,
    27 Cal.3d at p. 71.) 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.
    31
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    First, although there was strong evidence that Pride was
    defendants’ primary target, there was conflicting evidence
    regarding whether defendants also intended to kill Bolden
    specifically. On the one hand, Detective Williams testified that
    Pride indicated to him during a pretrial interview that the
    shooter was targeting Bolden, not him. Detective Williams’s
    interview with Bolden, when Bolden described his earlier
    confrontation with Canizales, likewise suggested that Bolden
    believed Windfield was shooting at him. The evidence also
    showed Bolden was a member of a rival gang and that
    defendants, who were members of the Ramona Blocc gang, were
    seeking to retaliate against the Hustla Squad gang for the fatal
    shooting of Windfield’s cousin. Taken together, this evidence
    indicates that the jury could have concluded that defendants
    had the requisite intent to kill Bolden specifically.
    But other evidence leads us to conclude that it is not clear
    beyond a reasonable doubt that a reasonable jury would have
    come to that determination. Bolden told Detective Williams and
    testified at trial that Windfield was not talking about him when
    he said, “There goes that little nigga,” because Windfield did not
    know him, and that defendant saw Pride, who “gave it away” by
    running.7 Bolden testified he thought Windfield was shooting
    7
    The exchange between Detective Williams and Bolden
    further supports this conclusion: “[Det. Williams]: They was
    talkin’ about you? [¶] [Bolden]: They saw Denzel [Pride].
    ’Cause he the one . . . he was the first one to run! [¶] . . . [¶]
    [Det. Williams]: Okay, so you start lookin’ then when you
    realized it was them, it was too late for you to tell them [Pride
    and the others] . . . [¶] [Bolden]: And plus . . . and plus Denzel
    already gave it away when he start runnin’. That’s why
    everybody was lookin’ like why he runnin’. And . . . [¶] [Det.
    32
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    at Pride because Bolden “would have got hit first” if Windfield
    was shooting at him. When Bolden described the gunshots he
    stated the bullets were “tingling through the gates” and “going
    everywhere” because Windfield could not control his gun. There
    was also testimony at trial that Windfield later admitted to a
    family friend that “the guy he was shooting at ran and the girl
    got in the way.” Based on the evidence alone, then, it is not clear
    beyond a reasonable doubt that a reasonable jury would
    conclude defendants intended to kill Bolden specifically.
    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 theories in
    her argument, and strenuously argued the theory that
    defendants specifically targeted both Bolden and Pride. That
    portion of her argument emphasized that Bolden and Pride’s
    gang affiliation provided the motive for the shooting because
    defendants were “trying to kill Hustla Squad.” She also
    emphasized Bolden’s pretrial statements to Detective Williams
    that Windfield was shooting at him as evidence that showed
    Williams]: So how did Denzel . . . ? [¶] [Bolden]: . . . that’s
    when the gunshots come on.”
    33
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    defendants had in fact “shot at both of them.”8 But this does not
    overcome the potential for confusion created by the attempted
    murder instruction in combination with the prosecutor’s
    argument. Taken together, it cannot be said beyond a
    reasonable doubt that a reasonable jury would conclude
    defendants targeted Bolden specifically.
    The jury’s questions during deliberations are also
    instructive. The jury here did not ask questions directed solely
    to the kill zone theory or that otherwise suggested it had relied
    solely on the kill zone theory to find defendants guilty of the
    attempted murder of Bolden. (Cf. In re Martinez (2017)
    3 Cal.5th 1216, 1227 [jury’s mid-deliberations note seeking
    clarification of the standard instruction on aider and abettor
    liability, and the court’s response to that inquiry, suggested that
    the jury may have found the defendant guilty of murder based
    on the invalid theory that the murder was a natural and
    probable consequence of the assaults that preceded the
    shooting].) But, as defendants point out, the jury did request a
    readback of Bolden’s testimony to the effect that “[t]hey weren’t
    shooting at me.” In the portion of Bolden’s testimony that the
    8
    The prosecutor argued in full: “Attempt murder goes to
    both Count 2 and 3. They tried to kill someone, but they weren’t
    successful. . . . And they intended to kill that person. Well,
    they’re both Hustla Squad. You have a motive of why they’re
    out there. They are trying to kill Hustla Squad, right? [¶] Now
    [Bolden] told you very clearly they were shooting at [Pride] but
    [Pride] turned around and ran and they’re shooting at him. And
    then at one point [Bolden] tells you he runs out and they’re
    shooting at him. And you see that in his video statement with
    Detective Williams. So they shot — [defendant Windfield] shot
    at both of them. That’s why you have a count for each one of the
    attempts.”
    34
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    jury asked to rehear, the prosecutor asked Bolden whether
    Windfield was shooting at him. Bolden answered, “To be honest,
    I don’t feel he was shooting at me because I was in front of
    [Pride]. . . . But he was shooting our way.” When asked to
    confirm that he had told Detective Williams in a pretrial
    interview that Windfield was shooting at him, however, Bolden
    said he “couldn’t remember that part” but that he “probably did.”
    The request for a readback is not dispositive, but it suggests the
    jurors at one point were focused on testimony that would have
    supported the theory that defendants did not target Bolden
    specifically.
    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
    premeditation in attempting to murder Bolden (see §§ 664, subd.
    (a) and 187, subd. (a)) show the jury necessarily determined that
    defendants acted with the specific intent to kill. The jury could
    not have found premeditation and deliberation without also
    having determined that defendants had formed the intent to
    kill. (See People v. Catlin (2001) 
    26 Cal. 4th 81
    , 151.) We agree
    with Windfield, however, that the true findings regarding the
    allegation that defendants acted with deliberation and
    premeditation in attempting to murder Bolden do not affect our
    determination. As we explained ante, the kill zone theory
    permits the jury to infer that the defendant harbored the
    requisite specific intent to kill the primary target and everyone
    within the zone of fatal harm. Thus, the jury would have found
    a specific intent to kill were it to have relied solely on the kill
    zone theory of attempted murder liability.
    35
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    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 requisite element of intent to kill, in
    violation of their right to due process. Because we conclude that
    the instruction should not have been given and that doing so
    prejudiced defendants, we need not reach this separate
    constitutional challenge.
    36
    PEOPLE v. CANIZALES
    Opinion of the Court by Cantil-Sakauye, C. J.
    III. DISPOSITION
    The judgment of the Court of Appeal is reversed as to the
    attempted murder convictions regarding Bolden.
    CANTIL-SAKAUYE, C. J.
    We Concur:
    CHIN, J.
    CORRIGAN, J.
    LIU, J.
    CUÉLLAR, J.
    KRUGER, J.
    GROBAN, J.
    37
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion People v. Canizales
    __________________________________________________________________________________
    Unpublished Opinion
    Original Appeal
    Original Proceeding
    Review Granted XXX 
    229 Cal. App. 4th 820
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S221958
    Date Filed: June 24, 2019
    __________________________________________________________________________________
    Court: Superior
    County: San Bernardino
    Judge: Steven A. Mapes
    __________________________________________________________________________________
    Counsel:
    Christine Vento, under appointment by the Supreme Court, for Defendant and Appellant Michael Raphael
    Canizales.
    David P. Lampkin, under appointment by the Supreme Court, for Defendant and Appellant KeAndre Dion
    Windfield.
    Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
    Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State
    Solicitor General, Andrew Mestman, Lise Jacobson and Paige B. Hazard, Deputy Attorneys General, for
    Plaintiff and Respondent.
    Mitchell Keiter as Amicus Curiae on behalf of Plaintiff and Respondent.
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    Christine Vento
    P.O. Box 691071
    Los Angeles, CA 90069-9071
    (323) 936-5113
    David P. Lampkin
    P.O. Box 2541
    Camarillo, CA 93011-2541
    (805) 389-4388
    Paige B. Hazard
    Deputy Attorney General
    600 West Broadway, Suite 1800
    San Diego, CA 92101
    (619) 645-2166