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45.5 Transferred Intent

    45.5.1 Transferred Intent Allows Conviction Of Attempted Murder As To Intended Victim And Murder As To Unintended Victim Who Is Killed
    45.5.2 Death Of Intended Victim Does Not Preclude Transferring Intent To Unintended Victim    
    45.5.3 Intent To Kill Multiple Victims: Inapplicability Of Transferred Intent
    45.5.4 Transferred Intent: Applicable Only Within The Limits Of The Same Crime
    45.5.5 Transferred Intent: Improper Where Severity Of Conviction Depends On Status Of Victim
    45.5.6 Transferred Intent: Inapplicable To Inchoate Homicides

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    45.5.1    Transferred Intent Allows Conviction Of Attempted Murder As To Intended Victim And Murder As To Unintended Victim Who Is Killed

PRACTICE NOTE: People v. Scott (CA 1996) 14 C4th 544 [59 CR2d 178] held that when a person shoots and misses one person with an intent to kill and kills a bystander instead, the person may be held accountable for both attempted murder as to the intended victim and murder as to the unintended victim under the transferred intent doctrine. This is so even though it could result in differing punishments for two individuals with the same "blameworthy mental state" as pointed out by Justice Mosk in his concurring opinion. (Scott, 14 C4th at 555-56, concurring opinion.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.9 [Intent].

See also generally, FORECITE National™ 305.20.6 [Transferred Intent].

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    45.5.2    Death Of Intended Victim Does Not Preclude Transferring Intent To Unintended Victim    

PRACTICE NOTE: People v. Bland (CA 2002) 28 C4th 313, 326 [121 CR2d 546] disapproved People v. Birreuta (CA 1984) 162 CA3d 454, 458-63 [208 CR 635], and concluded that intent to kill transfers to an unintended homicide victim even if the intended target is killed. (2002 DAR at 7454.)  

    See also FORECITE National™ 45.5.3 [Intent To Kill Multiple Victims: Inapplicability Of Transferred Intent].

    See also FORECITE National™ 45.5.6 [Transferred Intent: Inapplicable To Inchoate Homicides].

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.9 [Intent].

See also generally, FORECITE National™ 305.20.6 [Transferred Intent].

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PRACTICE NOTE: Where a single act is alleged to be intended to harm two or more people, the intent should be evaluated independently as to each victim, and the jury should not be instructed to transfer intent from one to the other. (People v. Czahara (CA 1988) 203 CA3d 1468, 1475 [250 CR 836]; see also People v. Chinchilla (CA 1997) 52 CA4th 683, 691 [60 CR2d 761] [firing single bullet at two people allows jury to infer that defendant intended to kill both]; People v. Andrews (CA 1997) 52 CA4th 714, 719 [60 CR2d 766] [swinging bottle at two victims was sufficient to establish two assaults]; People v. Calderon (CA 1991) 232 CA3d 930, 936 [283 CR 833]; see also FORECITE National™ 45.5 [Transferred Intent].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.9 [Intent].

See also generally, FORECITE National™ 305.20.6 [Transferred Intent].

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PRACTICE NOTE: "...[W]hile a defendant can be convicted when he both has the mens rea and commits the actus reus required for a given offense, he cannot be convicted if the mens rea relates to one crime and the actus reus to another. Although the courts have not carefully articulated the reasons why this is so, the basic point is that a contrary rule would disregard the requirement of an appropriate mental state. [Citations.]" (LaFave & Scott, Substantive Criminal Law § 3.11(d) p. 385 (West, 1986).)

    For example, where the defendant intentionally steals a gas meter from a house and a woman is made ill by the escaping gas, the intent to steal does not suffice to establish an intent to injure. (Id. at 384-5.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.9 [Intent].

See also generally, FORECITE National™ 305.20.6 [Transferred Intent].

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    45.5.5    Transferred Intent: Improper Where Severity Of Conviction Depends On Status Of Victim

PRACTICE NOTE: It has been held error to apply transferred intent to a circumstance where the severity of the offense depended on the status of the actual, but unintended, victim. (See U.S. v. Montoya (9th Cir. 1984) 739 F2d 1437, 1438 [unintentional victim was federal officer]; but see Robinson, Criminal Law Defenses § 89(e) fn. 19 (West, 1984); FORECITE National™ 302.5.9 [Death Eligibility: Murder Of Police Officer, Etc.-- Knowledge Requirement]; see also FORECITE National™ 77.4.2.3 [Assault On Police Officer: Requirement Of Knowledge That Victim Was A Law Enforcement Officer Engaged In Performing Official Duties].) In so concluding, the court rejected the argument that the offense is one of strict liability with respect to the identity of the victim.

    See also FORECITE National™ 59.3 [Occupational Status Of Victim].

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.9 [Intent].

See also generally, FORECITE National™ 305.20.6 [Transferred Intent].

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ALERT: People v. Bland (CA 2002) 28 C4th 413, 326-31 [121 CR2d 546], held that transferred intent does not apply to attempted murder. Accordingly, unless the defendant specifically intended to kill the second victim, or if the second victim was in the "killing zone," the defendant may not be convicted of attempting to murder the second victim based solely on the intent to kill the first victim.

    See also FORECITE National™ 45.5.3 [ Intent To Kill Multiple Victims: Inapplicability Of Transferred Intent].

PRACTICE NOTE: The doctrine of transferred intent should not be applied to inchoate homicides such as attempted murder, attempted voluntary manslaughter, or assault with intent to commit murder. (See Harvey v. State (MD 1996) 681 A2d 628, 634.) In such a situation, the specific intent with respect to the intended victim is sufficient to convict the defendant of the inchoate crime as to that charge. (See, e.g., People v. Scott (CA 1996) 14 C4th 544, 548 [59 CR2d 178]; see also Ford v. State (MD 1993) 625 A2d 984, 998 [transferred intent "does not make two crimes out of one;" when "the crime intended has actually been committed against the intended victim, transferred intent is unnecessary and should not be applied to acts against unintended victims"].)

    If the unintended victim is injured but not killed, the specific intent may not be transferred but any general intent may be transferred. (See Brady v. State (FL 1997) 700 So2d 471, 472.) However, if the unintended victim is killed then the intent to kill the intended victim may be transferred and the defendant may be convicted of homicide as to the unintended victim. (See Scott, 14 C4th at 552; see also Ruffin v. U.S. (DC 1994) 642 A2d 1288, 1293; Poe v. State (MD 1996) 671 A2d 501, 504; State v. Hough (MN 1998) 571 NW2d 578, 581; State v. Worlock (NJ 1990) 569 A2d 1314, 1324.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.9 [Intent].

See also generally, FORECITE National™ 305.20.6 [Transferred Intent].