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Reversed: Kill Zone Instruction Prejudicial Error

In re Lisea Court: California Courts of Appeal, Docket: C093386 (Third Appellate District), Opinion Date: January 13, 2022. This case arose out of a confrontation between petitioner’s gang and a rival gang in which an innocent bystander was shot. Petitioner, the driver of the vehicle from which his fellow gang members fired several shots, was convicted of attempted murder, assault with a firearm, criminal street gang participation with gang and firearm enhancements, for which he was sentenced to 32 years to life. The prosecution's primary theory was that petitioner aided and abetted these offenses, which were the natural and probable consequence of disturbing the peace or simple assault. The Court of Appeal affirmed the judgment on appeal, finding in the published part of its opinion that a person convicted as an aider and abettor was a “principal” for the purposes of Penal Code section 12022.53(e). In 2014, petitioner petitioned for writ of habeas corpus to the superior court, which was denied. In 2015, petitioner filed a petition for writ of habeas corpus with the Court of Appeal, which also was denied. The California Supreme Court granted review and subsequently remanded the case to the Court of Appeal with directions to vacate its decision and reconsider the matter in light of California v. Canizales, 7 Cal.5th 591 (2019). On remand, the appellate court vacated the superior court's denial, and remanded to that court for additional proceedings. The superior court again denied relief in March 2020. Petitioner again petitioned for habeas relief to the Court of Appeal in January 2021, arguing: (1) there was insufficient evidence to give a kill zone instruction, a prejudicial error requiring reversal of his attempted murder conviction; (2) allowing him to be liable for the section 12022.53 enhancement as a principal violated his due process right to adequate notice; (3) the failure to instruct the jury on attempted involuntary manslaughter violated his due process rights; (4) cumulative error warrants reversal; and (5) appellate counsel was ineffective in failing to raise issues raised in the habeas petition. The Court of Appeal determined the kill zone instruction given in petitioner's case differed from that in Canizales. "The instruction in this case, when combined with the prosecutor’s arguments concerning it, presented the same problem that led to reversing the conviction in Canizales. The instruction allowed the jury to use circumstantial evidence to infer an intent to kill the victim when that same circumstantial evidence can support a reasonable inference of no intent to kill." Finding the error was prejudicial, the Court vacated petitioner's murder conviction, reversed the sentence, and remanded for additional proceedings.

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