Your son, daughter or spouse is in a restaurant minding their own business.
Unbeknownst to them at the adjoining table sits a marked man.
They are laughing with friends and enjoying a meal when suddenly another man approaches, pulls out a weapon and starts firing at the man at the next table as he stands behind them. Automatic fire zips inches above their heads.
When the shooting stops the target is hit while another 20 bullets just barely missed your loved one who was sitting in the line of fire. The target did not die.
Although your loved one wasn’t injured, the district attorney determines they were sitting in the “kill zone”. Given the reckless nature of the shooting, the wanton disregard for life, and the fact an attempted murder charge involving the intended target wouldn’t likely put the man — if that’s what you want to call him — away for a time that is proportionate to the havoc he raised, the DA opts to apply the “kill zone” prosecution. It is justification for a second attempted murder charge — that of your loved one — against the shooter.
Sounds reasonable, right?
Guess again. The California Supreme Court this week limited “kill zone” convictions involving defendants slapped with attempted murder charges for those smack dab in the middle of a crime scene that weren’t targeted and regardless if they were injured.
Welcome to Kill-a-fornia.
In the ruling on behalf of the court Chief Justice Tani Cantil-Sakauye wrote that the “kill zone” theory should be used only when there is evidence a defendant had a specific intent to kill the target and “everyone within the zone of fatal harm.”
And you were worried that the Wild Wild West was dead.
It’s not just enough that innocent people are sitting in the line of fire of someone who clearly is not playing a game of Old Maid, but the DA has to prove they had a specific intent to kill them.
Of course the judges gave prosecutors “new standards” to apply to the “killing zone” theory. They include the location of the victim that was not the primary target, the circumstances of the attack, and the type of weapon and extent of the force deployed. In case you are wondering those are standards prosecutors already apply. Apparently the justices want to err on the side of killers who essentially view others near their target as collateral damage.
The “kill zone” theory has been in place since 2002. It was developed as a way to assure those that the most heinous and reckless acts with disregard for human life would be taken off the street for a long time.
Now the trend — whether from new state laws or judicial review — is to go from throwing the book at those committing the worst crimes to finding ways to whittle down jail time.
In the realm of the case the justices reviewed of a San Bernardino attack where attempted murder convictions for two people who were in the “kill zone” but not hurt they likely had reason to believe the prosecutor and jury went too far with the law. But to send a signal that “kill zone” convictions are essentially an overkill of justice opens the door for potential recourse for hundreds that have been convicted and sent to prison under “kill zone” convictions and raises the bar for future convictions while lowering the bar for defendants that show complete disregard for human life beyond their intended target.
Those that seek out a potential person to kill or do so with potential collateral damage around and carry out their crime so it is not up close and personal are ones creating kill zones, not prosecutors.
The only way there is never intent to harm someone else is if the target was killed away from other people. Doing so with potential collateral damage around is a clear sign that the killer does not care. If they commit or attempt a crime such as first degree murder that carries intent how does the court justify the cheapening of life in the “kill zone” that was not the target?
This is not splitting hairs. That’s because the logic can be extended to other enhancement prosecutions designed to take people off the streets who commit heinous crimes with a complete disregard for human life and the rules of a civilized society.
How much longer will the high court allow laws such as documented gang members using a gun in the commission of a crime stand?
It may be the most absurd example possible, but what becomes of prosecutions such as one 15 years ago that sent a gang member in Manteca to state prison for an extra 20 years after he was found guilty of shooting at someone else with the intent to kill but missed them completely? If he had merely been a bad shooter he would have gotten seven years tops. The fact he was a documented gang member earned him the 20-year enhanced sentence. What made the case absurd is the gang member that was convicted called a cab from a Manteca taxi firm that he told to drive him past the address where he conducted the drive by shooting.
A rational person should see how such an individual should be put away as long as legally possible with sentencing enhancements that go to the core of the wanton disregard for life they display. In the case of gangs, the code they follow whole heartedly embraces killing to carry out acts of retribution with little regard for anyone that happens to be in the way.
There are a number of cases where a gang member didn’t hit anyone — including the intended target — but were successfully prosecuted for attempted murder for almost killing innocents in the kill zone.
One such case was in Manteca in 2003 when two gang members opened fire driving down Moffat Boulevard in a SUV. They didn’t hit anybody but one of their bullets went into a passing vehicle and barely missed a baby strapped into a car seat. Had they not been documented gang members after they arrest at gunpoint a few days later in the Home Depot parking lot they would have been back out on the street years ago,
Had they been run-of-the-mill criminals the “kill zone” theory would have come in handy had they hit and wounded their intended target to assure they would have gone away from a long, long time.
Perhaps having such a wanton disregard for human life of others besides that of the person they set out to shoot might pass muster under the higher bar the state high court now is demanding when “kill zone” prosecutions are employed in a bid to put away those deemed to be dangerous loose cannons with no regard for anyone’s life in the pursuit of who they want to kill.
The new litmus test is likely to chill the use of kill zone prosecutions that the court obviously views as overkill.
But it also makes California a lot less safer as it is a step toward weakening the consequences of perhaps the most serious felony you can commit which is not just succeeding or trying to take out someone but to do so in a manner that puts lives of innocents in the balance in such a manner that bad luck or bad marksmanship would likely maim or kill them.
That’s how we roll these days in Kill-a-fornia.
This column is the opinion of executive editor, Dennis Wyatt, and does not necessarily represent the opinion of The Bulletin or Morris Newspaper Corp. of CA. He can be contacted at firstname.lastname@example.org or 209.249.3519.