The Magic Bullet in People v. Perez: Charging Attempts Based on Culpability and Deterrence Regardless of Apparent Ability
Andrew P. Garza
In People v. Perez the California Supreme Court held that a defendant who fires a single shot into a crowd of eight people is properly charged with only one count of attempted murder. Although the defendant intended to kill anyone his bullet struck, the court declined to charge him with a count for each potential victim because he lacked a particular target and because of the physical impracticability of killing all eight with one shot. However, this Comment argues that where a defendant manifests the requisite intent as to each potential victim, and undertakes the ineffectual act necessary for an attempt charge, a count for each theoretical victim is proper irrespective of the practicalities of a single shot.
By focusing on the spatial alignment of the victims and the physical possibilities of the bullet, the court misapplied its precedent. Moreover, a defendant who risks the lives of more than one person is more morally culpable than one who fires at an isolated individual. Attempt law rationale and theories of punishment favor charging defendants in proportion to their culpability. Multiple charges further these goals and increase deterrence. While there may be concerns that such a rule will lead to disproportionate punishments, these concerns are mitigated by prosecutorial discretion in charging and judicial discretion in sentencing.