In re Sirypangno CA4/1

I.

INTRODUCTION

In 2008, a jury found Konesavanh Donald Sirypangno guilty of first degree murder, attempted murder, and assault with a firearm as an aider and abettor to his codefendant, David Phommachanh, who personally shot the two victims. With respect to the attempted murder charge, the court instructed the jury with a kill zone instruction. Years later, the California Supreme Court decided People v. Canizales (2019) 7 Cal.5th 591 (Canizales), which clarified and restricted the scope of the kill zone theory’s applicability. Based on the authority of Canizales, Sirypangno petitions for a writ of habeas corpus arguing that no kill zone instruction was warranted in his case and that the kill zone instruction that the court gave was erroneous.1 We asked the People to submit an informal response to Sirypangno’s petition. The People concede in their informal response that the instruction, as given, was legally erroneous under Canizales, and that the instructional error was prejudicial, thus entitling Sirypangno to the vacatur of his attempted murder conviction. For the reasons explained below, we accept the People’s concessions and conclude that the trial court gave a legally…