Murder, Manslaughter, generally
Category > Murder, Manslaughter, generally
Updated 7/12/2024Prosecutor misstated the law by arguing implied malice would be satisfied if the defendant was aware his dangerous conduct could “hurt” someone.Defendant was convicted of second degree murder under an implied malice theory. He admitted an intent to hurt, but denied an intent to kill the victim. During arguments, the prosecutor said a defendant has the required mental state if he is aware that his conduct is dangerous but doesn’t care “if someone is hurt or killed.” However, that was a misstatement of the law because implied malice requires a disregard for human life, and the prosecutor lowered the bar by suggesting it was enough that the defendant be aware his actions could hurt someone. The court added to the error by informing the jurors there was legal authority to support the argument. The error required reversal of the murder conviction.id: 28303
Updated 3/4/2024First degree murder by poison requires proof that defendant gave the victim poison with the intent to kill or inflict GBI.Defendant was convicted of first degree under a murder-by-poison theory where the defendant’s drug use during pregnancy poisoned her breast milk, which in turn killed her five-day old daughter. However, to elevate a murder to first degree, it’s not enough for the prosecution to prove the use of poison was a substantial factor cause of the victim’s death. Instead, it must prove the defendant deliberately gave the victim poison intending to kill the victim or inflict injury likely to cause death. The failure to instruct on this point required reversal of the conviction.id: 27688
Updated 2/26/2024A defendant can be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine. In People v. Chiu (2014) 59 Cal.4th 155, the court held that a defendant cannot be convicted of first degree premeditated murder as an aider and abettor based on the natural and probable consequences doctrine. Chiu does not apply to defendant who was convicted of lying-in-wait murderid: 26427
Defendant’s first degree murder conviction was reversed after Chiu even where it wasn’t clear the jury focused on the invalid theory.In People v. Chiu (2014) 59 Cal.4th 155, the court held that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. The prosecution argued defendant was not entitled to have his conviction reversed because he failed to show the jury based its verdict on the natural and probable consequences theory of aiding and abetting. However, the record shows the jury may have focused on the invalid theory, so reversal of the conviction was necessary.id: 24663
Life sentences for the attempted murder convictions violated the defendants’ due process rights where the information did not allege the attempted murders were willful, deliberate and premeditated.Defendants’ life sentences for the attempted murder counts violated Penal Code section 664, subd.(a) and their due process rights because the fact that the attempted murders were willful, deliberate and premeditated was not charged in the information and defendants had no notice before sentencing that they were facing life terms for the convictions. Because the record shows the defendants were unaware of the issue they did not forfeit the claims by failing to raised them in the trial court.id: 24054
Provocation needed to reduce a murder to manslaughter need not be of a kind that would cause an ordinary person to kill.The heat of passion that will reduce a murder to voluntary manslaughter is present when it would cause a person of average disposition to react from passion and not from judgment. The provocation need not be of a kind that would cause an ordinary person of average disposition to kill.id: 23178
Self-defense instruction should not have been given in the provocative act murder case.Defendants argued the trial court erred by instructing with CALJIC 5.44 regarding a resident’s right to self-defense against an intruder. Provocative act murder, the theory used to convict the defendants does depend upon the reasonableness of the actual killer’s lethal response, and therefore none of the self-defense instructions should have been given. However, the error was harmless where the defendants requested the instruction, and it benefitted the defendants by giving them another theory to argue that provocative act had not been proved. id: 23028
The juvenile court erred by changing the verdict from second to first degree murder after the prosecutor argued there was no such law as conspiracy to commit second degree murder.At the conclusion of the jurisdiction hearing, the juvenile court found that the minor had engaged in conspiracy to commit murder, and on the second count that he had committed second degree murder. After the prosecutor argued that the murder was necessarily of the first degree (once the court found that there was a conspiracy to commit murder) the court changed its finding to first degree murder. However, the court erred by changing the verdict. Even though there is no crime in California of conspiracy to commit second degree murder, there is no inconsistency in finding that a person both conspired to commit first degree murder and then committed a murder that under the circumstances was second degree.id: 21839
Transferred intent doctrine does not apply to the attempted murder of the surviving victims if defendant intended to kill only the deceased.Defendant shot at three persons, killing one and injuring the others. He was convicted of one first degree murder and two premeditated attempted murders. The appellate issue was whether defendant's intent to kill the murder victim transferred to an alleged attempted murder victim. Transferred intent applies even when the person kills the intended target. Intent to kill is not limited to the specific target but extends to anyone actually killed. However, the doctrine does not apply to an inchoate crime like attempted murder. A person who intends to kill only one is guilty of the attempted or completed murder of that one but not to the attempted murder of the others he did not intend to kill. Whether defendant is guilty of the attempted murder of the two surviving victims depends on his mental state as to those victims not his mental state as to the intended victim.id: 16867
Defendant should only have been convicted of one count of murder involving the killing of a victim charged in separate counts under three alternative theories.Defendant was improperly convicted of three separate counts of murder of Trujillo as the three counts charged a single offense under alternative theories. The judgment was consolidated to reflect one count of murder with two special circumstances and a finding of malice.id: 21109
The trial court erred by failing to instruct that drive-by murder requires an intent to kill.First degree drive-by murder is not felony murder, and although premeditation is not required to establish the crime, a specific intent to kill is required. The trial court erred by giving inconsistent instructions on the issue of whether the jury had to find the killings were intentional. However, the error was harmless where the jury was told numerous times, and the prosecutor emphasized, that a conviction required a finding of intent to kill.id: 17859
Premeditation and deliberation finding was vacated where defendant was not charged with attempted premeditated murder.Defendant was convicted of attempted murder with premeditation and deliberation. The finding of premeditation and deliberation was vacated since the information did not charge defendant with attempted premeditated murder as required by Penal Code section 664, subdivision (1). The court refused to extend <i>People v. Toro</i> (1989) 47 Cal.3d 966 (which held silence by a defendant can be interpreted as an implied consent to being charged with a lesser crime) to a situation where defendant stands to be convicted of a greater crime. There was no evidence that defendant expressly or impliedly consented to the amendment.id: 10166
Failure to specify the degree of the murder on the verdict form required a reduction to second degree murder.Defendant was convicted of murder and the jury found the felony-murder special circumstance to be true. However, the jury did not make any finding on the verdict form with respect to the degree of murder. The first degree murder finding and special circumstance finding were vacated and the murder finding was reduced to second degree. That the issue was not raised on appeal did not prevent its consideration on habeas corpus.id: 10152
Flannel theory of imperfect self-defense remains viable notwithstanding the elimination of the diminished capacity defenseThe Legislature has not, whether in the 1981 amendments to the Penal Code or otherwise, eliminated the doctrine of imperfect self-defense, (<i>People v. Flannel</i> (1979) 25 Cal.3d 668.) When the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and cannot be convicted of murder.id: 10135
Defendant's second degree murder conviction was reversed since felony evading cannot serve as the predicate for felony murder and the instructions would not necessarily have allowing allowed a finding of implied malice.Defendant was convicted of second degree murder after a high speed chase resulted in the killing of another driver. The jury was instructed on two theories: implied malice and felony murder based on a violation of Vehicle Code section 2800.2 (evading an officer with willful or wanton disregard for safety.) In People v. Howard (2005) 34 Cal.4h 1129, the court recently found that section 2800.2 cannot serve as the predicate offense for a second degree felony-murder conviction. The conviction was reversed since, under the instructions given, a jury finding the mental state required for felony murder would not necessarily have found that required for implied malice murder.id: 18582
The court improperly instructed the jury they could convict defendant of murder upon his possession of property recently stolen property from the victim and other slight corroborating evidence.CALJIC 2.15 states that a defendant may be found guilty of a theft-related offense if the defendant is in possession of recently stolen property and there is other slight corroborating evidence of guilt. The trial court erred in modifying the instruction to include murder as a crime to which it would apply. Proof that a defendant was in possession of recently stolen property does not lead naturally to the conclusion that the defendant committed a murder to obtain the property. However, the instructional error was harmless in light of the other properly given instructions and the defendant's multiple admissions of guilt for the murder.id: 16463
Evidence did not show proximate cause in a provocative act murder case where defendant fired a nonlethal shot at a rival gang member and that gang retaliated by killing a member of defendant's gang.Defendant was a gang member who fired a nonlethal shot at a rival gang member. Friends of the victim retaliated by shooting and killing a member of defendant's gang. Defendant was charged with the murder of his friend under the provocative-act murder theory. However, given that the murder by the rival gang was itself felonious, intentional, perpetrated with malice aforethought, and directed at a victim who was not involved in the original shooting, the evidence was insufficient as a matter of law to establish cause to hold defendant liable for murder.id: 16462
Evidence of a hallucination is admissible to reduce first degree murder to second degree murder but not to negate malice so as to reduce murder to voluntary manslaughter.In a murder prosecution, evidence of a hallucination - a perception with no objective reality - is inadmissible to negate malice so as to mitigate murder to voluntary manslaughter. However, the evidence is admissible to negate deliberation and premeditation so as to reduce first degree murder to second degree murder.id: 17058
The prosecutor committed misconduct by arguing the jury need not find an intent to kill as to each victim in the "zone of danger" when defendant indiscriminately fired shots, and defense counsel rendered ineffective assistance in failing to object. Defendant was convicted of four counts of attempted murder after firing two shots in the direction of four men, including one shot fired near the first victim and the second fired near the group of three. The trial court did not err in failing to instruct that the jury had to find that as to each victim, the defendant harbored the specific intent to kill. However, the prosecutor erred by arguing that it was unnecessary to find each intent if the named victim was in the "kill zone" or "zone of danger" created when defendant fired shots indiscriminately into a group of people. Defense counsel rendered ineffective assistance in failing to object to the improper argument.id: 19144
The lying-in-wait theory of first degree murder, like the related special circumstance, requires a substantial period of watching and waiting.The "substantial period of watching and waiting" required for the lying-in-wait special circumstance is also required for first degree murder based on lying-in-wait. The evidence supported this element where defendant told the victim to stay there if he wanted to live, a subterfuge to convince the
victim to stay put while he retrieved the gun. This showed a concealment of purpose. The evidence also supported a finding that lying in wait was for sufficient time period because it was
sufficient to show a state of mind consistent with premeditation or deliberation. Any error was harmless where there was sufficient evidence of premeditation and deliberation.id: 19340
License revocation for person convicted of ADW using a car does not apply to a person convicted of attempted murder using a car.Defendant rammed his car into the victim, resulting in amputation of the victim's leg. He pled no contest to attempted murder with a great bodily injury enhancement. Vehicle Code section 13351.5 requires the DMV to revoke a driver's license following a conviction of assault with a deadly weapon in violation of Penal Code section 245 when a vehicle is the deadly weapon used in the offense. The court erred in recommending license revocation under section 13351.5 in this case where the conviction was for attempted murder rather than assault with a deadly weapon under section 245 as specified in the statute.id: 17182
To be convicted of implied malice murder of a fetus, defendants had to have reason to believe the mother was pregnant.Defendants were convicted of the murder of a pregnant woman and her fetus. They argued, and the court agreed, that to be convicted of implied malice murder of a fetus, they had to have reason to believe the mother was pregnant. This is so because the death of a fetus is not a natural and probable consequence of shooting a woman. The shooter cannot have subjectively appreciated the risk to fetal life as a consequence of shooting the woman unless the shooter had reason to believe that the woman was pregnant, either because the shooter was told or the pregnancy was apparent. The conviction for murder of the fetus was reversed in light of the instructions on implied malice coupled with the prosecutor's erroneous statements made during closing arguments.id: 17425
Defendant convicted of murder was not subject to the section 2933.1 credit limitation, as his credits were governed by section 190.Defendant was convicted of first degree murder by personally using a firearm. The trial court found that under Penal Code section 2933.1, there was a 15 percent limitation on custody credits. However, the limitation did not apply because defendant's custody credits were governed by Penal Code section 190.id: 15420
Intent to kill is an element of attempted voluntary manslaughter.Intent to kill is an element of the crime of attempted voluntary manslaughter. Therefore, the trial court prejudicially erred by instructing the jury that the crime could be committed by a perpetrator who either intended to kill the victim, or acted in conscious disregard for life.
id: 17613
Provision describing higher term for second degree "drive-by" murder is an enhancement rather than a substantive offense but the elements must still be presented to the jury for a finding.Defendant argued he should not have been sentenced under the second degree drive-by murder statute (Penal Code section 190, subdivision (c) - 20 years to life if the killing was the result of a drive-by shooting) because that provision describes a substantive crime which was neither pleaded nor proven. However, section 190, subdivision (c) is not a substantive crime, but rather, an enhancement. Even as an enhancement, the elements should have been presented to the jury for a finding. The error does not require reversal where defendant did not challenge the trial court's finding that the killing was the result of a drive-by shooting.id: 15425
Court erred in ruling psychiatric experts could not testify as to mental illness or defect unless they believed defendant did not premeditate or deliberate the murders.The trial court erred in ruling the defense experts could not testify at the guilt phase as to defendant's mental illness unless they believed he did not premeditate and deliberate the murders. However, the error was not prejudicial where the record did not confirm defendant's claim that his failure to offer expert testimony regarding mental illness or defect was attributable to the court's restriction of expert testimony. Moreover, none of the experts, either court appointed or defense obtained, all of whom testified defendant was mentally ill, believed his illness affected his ability to premeditate or deliberate.id: 15419
Defendants who committed murders between 1994 and 1998 are entitled to custody credits but conduct credits are limited to 15 percent.The trial court improperly denied defendant any presentence credits pursuant to Penal Code section 2933.2. The provision prohibits presentence custody credits for those convicted of murder. However, section 2933.2 became effective in 1998 and the present murder was committed in 1996. Defendant was therefore entitled to custody credits. However, his <U>conduct</U> credits were limited to 15 percent pursuant to section 2933.1, subd. (a), which became effective in 1994.id: 14857
Supreme Court rules that double jeopardy may bar manslaughter indictment after guilty plea to misdemeanor DUI.Defendant plead guilty to two misdemeanor traffic tickets for driving while intoxicated and failing to keep to the right of the median. Shortly thereafter, he was indicted for vehicular manslaughter arising out of the same incident. In its bill of particulars, the State admitted that it intended to prove the same conduct for which he had pled guilty. In a 5-4 opinion written by Justice Brennan, the Supreme Court held that the double jeopardy clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which defendant has already been prosecuted. The majority added, however, that its holding would not bar a subsequent prosecution based solely on defendant's driving too fast in heavy rain to establish recklessness or negligence. Justices Scalia, Chief Justice Rehnquist, and Justices O'Connor and Kennedy dissented, arguing that the double jeopardy clause guarantees only the right not to be prosecuted twice for the same <i>offense,</i> not for the same acts.id: 10169
The consequences to be considered for the element of deliberation in murder may include those that affect the perpetrator.The jury should have been told, in response to their question, to consider whether the defendant considered the consequences of his act, whether to himself or to the victim. The error in denying the request for an instruction clarifying the nature of the deliberation required for first degree murder was harmless where the evidence that defendant did not consider the consequences to himself was not of sufficient weight to have altered the jury's conclusion.id: 10171
The court did not err in failing to instruct on the noncognizable crime of attempted involuntary manslaughter as a lesser included offense.Attempted involuntary manslaughter is a nonrecognizable crime because the underlying crime by definition does not require a specific intent to kill. Appellant argued that criminal negligence is a substitute for specific intent to kill, and thus, a defendant who acts with gross negligence and commits an act the probable consequences of which could, but did not, cause death has committed attempted involuntary manslaughter. However, under the facts of the instant case,the verdicts established that appellant shot while attempting to commit a felony, not while merely acting with gross negligence and he could not have been found guilty of any attempted homicide less than attempted felony murder.id: 10172
There is no such crime as conspiracy to commit second degree murder.Defendant argued the trial court erred by refusing to instruct on the lesser included offense of second degree murder with respect to the conspiracy to commit murder in count one and the murder in count 12. As to count one there was no error since all conspiracy to commit murder is necessarily conspiracy to commit first degree murder. As to count 12 there was no error since the defense was that the defendant was not guilty at all. Moreover, there was no support for the claim that defendant acted impulsively, and therefore without premeditation and deliberation.id: 16362
Updated 3/6/2024Attempted murder convictions were supported under the kill zone theory where the defendants shot multiple times at two people walking together.Defendants argued there was insufficient evidence of intent to kill to support the attempted murder conviction. However, the two defendants fired multiple shots at close range against two people who were walking side by side in close proximity to each other. Although Smith was the intended target, the circumstances suggest the defendants harbored the intent to kill everyone within that zone of harm. The attempted murder convictions were supported under the kill zone theory.id: 26591
Updated 3/6/2024Evidence that the defendants intended to kill everyone in the house supported the application of the kill zone theory.Evidence supported the multiple attempted murder convictions under the kill zone theory of liability. Defendants created a kill zone given the placement of the shots from the assault rifle at close range. The intent to kill everyone in the house was demonstrated by the manner of the shooting and knowledge of the victims’ specific locations was not necessary.id: 26649
Updated 3/4/2024Gross vehicular manslaughter while intoxicated is not a lesser included offense of “Watson murder.”Defendant was convicted of second-degree implied malice (“Watson”) murder after killing a child while drunk driving. He argued the trial court erred by failing to instruct on gross vehicular manslaughter while intoxicated as a lesser included offense of “Watson murder”. However, the former is not a lesser included offense of the latter.id: 28163
Updated 2/26/2024Evidence supported defendant’s conviction of attempted voluntary manslaughter where he fired multiple shots at a dance floor showing an intent to kill anyone near his intended victim in order to kill the intended victim.Defendant entered a crowded bar and fired 10 shots at his primary target (Smith) on the dance floor injuring Smith and an innocent bystander. He was charged with attempted murder but convicted of the voluntary manslaughter of the bystander. He was prosecuted under the “kill zone” theory but argued a lack of intent to kill the victim. However, the record showed the defendant intended to kill everyone close to Smith in order to ensure Smith’s death. Evidence supported the conviction. Defendant forfeited any claimed error with the kill zone theory instruction, which was legally correct.id: 26588
Updated 2/26/2024Defendant’s conduct was a but-for cause of the victim’s death where he beat the victim and slammed his head against the ground before he died during treatment by the paramedics.Defendant punched the victim (who was high on methampthemine) in the face multiple times and slammed his head against the ground. First responders restrained the uncooperative victim in an effort to render medical aid. Shortly thereafter, the victim became unresponsive and died. Defendant argued the trial court erred in concluding in the context of a restitution order that defendant’s conduct caused the victim’s death. However, the evidence supported the trial court’s finding that the defendant’s conduct was a but-for cause of the victim’s death. id: 26576
Updated 2/26/2024A violation of Vehicle Code section 23153 is not a lesser included offense of gross vehicular manslaughter while intoxicated under Penal Code section 191.5 (a) where the offenses involved separate victims.Defendant was convicted of gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5 (a). He was also convicted of drunk driving causing injury under Vehicle Code section 23153. He argued the latter conviction had to be reversed because it was a lesser included offense of the former. However, both convictions were proper where the offenses involved separate victims.id: 26859
Updated 2/23/2024SB 1437 relief is not available for those convicted of voluntary manslaughter. Defendants charged with felony murder but convicted of voluntary manslaughter pursuant to a plea agreement are not eligible for relief under Penal Code section 1170.95 (SB 1437.) That finding does not deny equal protection to those convicted of voluntary manslaughter.id: 26903
Updated 2/23/2024SB 1437 does not apply to attempted murder convictions. SB 1437 is constitutional as it does not amend Propositions 7 and 115, and does not violate the separation of powers doctrine. However, SB 1437 does not apply to attempted murder. Defendant was entitled to resentencing on his murder, but not attempted murder conviction.id: 26904
Updated 2/3/2024The trial court abused its discretion in admitting evidence of defendant’s minor driving offenses to prove implied malice at the Watson murder trial.Defendant was convicted of second degree murder (Watson murder) where malice was implied from defendant’s excessive drinking. The trial court erred by admitting evidence of defendant’s prior traffic offenses as proof of implied malice. However, the error was harmless where the record established implied malice without considering his prior driving conduct.id: 27852
Updated 1/31/2024New law providing immunity for acts with respect to a woman’s pregnancy including perinatal death due to causes that occurred in utero does not apply where the baby was born alive.Defendant gave birth to a baby girl who died within hours. She was charged with implied malice murder and felony child endangerment. Following her preliminary hearing, a new law went into effect providing immunity from liability for a person's acts with respect to her pregnancy including perinatal death due to causes that occurred in utero. Defendant moved to set aside the information claiming immunity under the new law. However, the new law does not provide immunity for acts or omissions that occurred after the baby was born alive. The evidence was sufficient to bind her over on the charges.id: 28047
The ‘kill zone” theory was proper in an attempted murder case (resulting in a conviction of attempted voluntary manslaughter) where defendant shot multiple times into a crowded dance floor. Defendant argued there was insufficient evidence to sustain the conviction because he did not intend to kill N.C., and prosecution should not have been permitted to infer intent under the “kill zone” theory. However, defendant shot a gun multiple times at a group of people on a crowded semi-dark dance floor. A reasonable jury could infer he intended to kill people including N.C., and the court did not err by allowing the prosecution to proceed under the “kill zone theory.”id: 26178
The second degree felony-murder rule is not unconstitutionally vague. Defendant argued the second degree felony-murder rule is constitutionally vague because it precludes consideration of real world facts showing how the individual offender committed the crime. However, the rule is not unconstitutionally vague. id: 26135
Defendant charged with murder who later pled guilty to voluntary manslaughter was not eligible for SB 1437 relief.Defendant pled guilty to voluntary manslaughter in 2007. In 2019, he filed a petition pursuant to Penal Code section 1170.95, but the trial court summarily denied it on the ground that SB 1437 relief is only available to those convicted of murder. Contrary to defendant’s claim, those charged with murder under a felony-murder or natural and probable consequences theory but plead guilty to manslaughter in order to avoid a trial, are not eligible for SB 1437 relief.id: 26662
Defendants seeking retroactive relief under SB 1437 must proceed by way of a petition under section 1170.95. Defendant appealed his murder conviction and sought relief under the newly enacted Senate Bill 1437, which changes the law on the mental state required to be guilty of murder. It addresses felony murder and the natural and probable consequences doctrine, and adds Penal Code 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief. Defendants must proceed by way of a petition pursuant to section 1170.95 to be filed in the trial court and may not circumvent the process by seeking retroactive relief in the appeal. id: 26053
Evidence of voluntary intoxication is not admissible on the question of whether the defendant believed he needed to act in self-defense. Penal Code section 294 permits evidence of voluntary intoxication on the question of whether the defendant harbored express malice (whether he intended to kill), but not on the question of whether he believed he needed to act in self-defense for purposes of voluntary manslaughter.id: 25629
First degree murder is not necessarily included in the offense of aggravated assault by a life prisoner.Defendant argued his conviction for first degree murder had to be reversed because it was necessarily included in the offense of aggravated assault by a life prisoner, of which he was also convicted. However, because it’s possible to violate the latter provision without committing first degree murder, it is not a lesser included offense of the former. id: 25144
First degree murder liability can be established in a provocative act murder case.The provocative act murder doctrine does not limit a defendant's liability to second degree murder when the defendant's accomplice is killed by the victim during a willful, deliberate and premeditated attempt to commit murder. However, the trial court erred by failing to instruct that to be found guilty of first degree murder, defendant must have personally acted deliberately and with premeditation when he committed attempted murder.id: 21102
The magistrate misapplied the law of causation in the drunken boating incident and failed to consider whether defendant’s conduct caused injury that was foreseeable. Defendant was charged with vessel manslaughter while intoxicated resulting in jury. The victim, heavily intoxicated, jumped off the back of a boat as defendant put the boat in reverse, struck the propeller and died instantly. Following a preliminary hearing the magistrate declined to hold defendant to answer on the charges finding no causation. It found the cause of death was the victim’s jump. However, the magistrate misapplied the law of causation. The matter was remanded for a determination of whether defendant’s conduct caused injury of a type that was foreseeable. id: 20896
Evidence supported the implied malice second degree murder conviction of a federal correctional officer who was intoxicated and playing with his gun. A person acts with implied malice when he is under the influence of alcohol or drugs, engages in joking or horseplay with a firearm, and causes the discharge of the firearm killing another person. The evidence supported the second degree murder conviction of the defendant who killed a fellow federal correctional officers under these circumstances. id: 24106
An aider and abettor can be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine.Defendant argued that an aider and abettor cannot be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine unless lying-in-wait was reasonably foreseeable. However, the rule stated in People v. Chiu (2014) 59 Cal.4th 155, that an aider and abettor cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine, does not apply to lying-in-wait murder. A person can be convicted under his theory without any evidence that he or she personally lay-in-wait or intended the perpetrator to do so. Moreover, the trial court was not required to instruct that the theory only applies where lying-in-wait murder was reasonably foreseeable.id: 24118
Neither heat of passion nor imperfect self-defense is an element of voluntary manslaughter that must be proven in order to obtain a conviction of that offense.A conviction of voluntary manslaughter may be sustained upon proof and findings that the defendant committed an unlawful and intentional homicide. Provocation and imperfect self-defense are not additional elements of voluntary manslaughter which must be proven and found beyond a reasonable doubt in order to permit the conviction of that offense. Accordingly, the trial court did not err in failing to instruct on provocation and imperfect self-defense as elements of voluntary manslaughter.id: 15424
First degree murder conviction was proper where the information alleged generic murder without specifying degree but the verdict found first degree murder “as charged in the information.”When a crime has more than one degree, and the jury fails to specify degree, Penal Code section 1157 provides the conviction shall be deemed to be of the lesser degree. In the present case, the verdict finding defendant “guilty of violation of section 187(a) of the Penal Code, a felony, first degree murder... as charged in the information” satisfies section 1157 even though the information charged generic murder without specifying the degree.id: 23831
Delusional self-defense is not a theory of manslaughter.The doctrine of unreasonable self-defense is not available when the belief in the need to defend oneself is entirely delusional. A purely delusional belief in the need to act in self-defense may be raised as a defense, but that defense is insanity, and that defense is reserved for a separate phase of trial. At a trial on the question of guilt, the defendant may not claim unreasonable self-defense based on insane delusion. id: 23617
Evidence supported the first degree murder conviction of a “mastermind” who was not present when an accomplice was killed following a provocative act.The “mastermind” of an armed home-invasion robbery who sends his accomplices to do his bidding can be convicted of first degree murder if one of his accomplices engages in provocative conduct and the victim kills in reasonable response to that conduct. In these circumstances malice is implied by law and imputed to the “mastermind” despite his absence from the scene of the crime. id: 23388
A killing without malice in the commission of an inherently dangerous assaultive felony is not voluntary manslaughter.The trial court did not err in failing to sua sponte instruct the jury on voluntary manslaughter as a lesser included offense of murder on the theory that defendant killed without malice in the commission of an inherently dangerous assaultive felony because such a killing does not constitute voluntary manslaughter. id: 23211
Evidence of an attack on vaginal and rectal areas as well as strangulation evidence supported the conviction of murder by torture.Evidence supported the murder by torture conviction where it showed evidence of a prolonged attack that included injuries to the vagina and rectal areas from a spray can and strangulation.id: 23311
The involuntary manslaughter conviction did not require a heightened showing of probable cause for a death that occured more than three years after an unlawful act.Defendant was convicted of involuntary manslaughter and child abuse homicide. He argued the involuntary manslaughter conviction had to be reversed because a heightened showing of proximate cause is required to trigger criminal liability for a death that occurs more than three years after an unlawful act. However, section 194 should not be construed to require a standard higher than reasonable doubt. Moreover, substantial evidence supported the trial court’s denial of the motion to acquit where the jury found the rupture of the victim’s stomach was not a superceding cause of his death.id: 22951
Criminal agency was established where the victim’s body was found in a blanket in the alley and defendant had previously drugged and assaulted young males.Defendant argued his murder conviction had to be reversed due to insufficient evidence of death by criminal agency. However, that the victim’s body was found wrapped in a blanket in an alley suggests it was a crime rather than an accident. The other acts evidence supported that theory as well since defendant’s modus operandi was to drug young heterosexual males and then assault them. Finally, the lack of a conclusive autopsy did not establish a failure to show criminal agency.id: 23004
Defendant violated section 273ab (child abuse homicide) even where the victim was older than eight at the time of his death where the assault took place when he was younger than eight.Defendant was convicted of child abuse homicide - inflicting injury on a child under eight years old, which is reasonably likely to cause great bodily injury resulting in death. (Penal Code section 273ab.) The child died more than three years after the assault. Defendant argued that because the victim was older than eight when he died, he did not violate section 273ab as a matter of law. However, the conviction was valid because the victim was younger than eight at the time of the assault.id: 22952
Defendant was properly convicted of first degree murder under the provocative act murder doctrine where he was committing a robbery and taunting the victim before one of them shot an accomplice.Defendant was convicted of murder based on the provocative act murder doctrine. He argued the court erred by instructing that the felony-murder rule could be used to determine the degree of murder committed under the provocative act murder doctrine. Contrary to defendant’s claim, he could be convicted of first degree murder under the doctrine even where the murder was committed during a robbery. Moreover, the evidence supported the conviction under the doctrine where defendant’s acts went beyond those necessary to commit the robbery. Far beyond committing a simple robbery, defendant taunted, terrorized and toyed with the victims for an extended period of time before one of them grabbed a gun and shot defendant’s accomplice.id: 22776
Defendant could be convicted of both murder and gross vehicular manslaughter while intoxicated for the same act. Gross vehicular manslaughter while intoxicated is not a lesser included offense of murder, and a defendant can be convicted of both offenses for the same act. id: 22473
One left-handed sucker punch causing the death of the victim who hit his head on the pavement supported the conviction for second degree murder based on implied malice. Without warning, a right-handed man (who had previously sucker-punched people during altercations) used his left hand to punch a man once in the head, causing the victim to hit his head on the pavement, fatally injuring him. There was sufficient evidence of implied malice to support the second degree murder conviction.id: 22571
Felony murder and premeditated murder are not distinct crimes and need not be separately pleaded. The reference in the information to Penal Code section 187 did not mean the prosecution could not proceed on a theory of felony murder, even though that is described in section 189.id: 21532
Rejecting the personal gun use allegation did not mean the jurors convicted defendant of murder on an aiding and abetting theory. Defendant argued that because the jurors rejected as untrue the personal gun use allegation, it must have found him guilty of first degree murder as an aider and abettor and the evidence did not support a conviction under that theory. However, the evidence showed defendant and the codefendant were coperpetrators in the robbery and felony even though it may not have definitively showed which was the actual shooter. And by providing the gun, defendant assisted the robbery in a way that supported the conviction. Moreover, the “split verdict” did not show the jury relied on the aiding and abetting theory and may have just shown uncertainty of the role each defendant played.id: 21597
The information need not allege the murder was in the first degree.Defendant argued that by failing to allege that the charged murder was first degree, he was effectively charged with murder in the second degree. However, an information charging murder in the terms of Penal Code section 187 is sufficient to charge murder in any degree.id: 21086
A conviction for attempted murder requires a generalized intent to kill someone, but not necessarily a specific target.A person who shoots into a group of people, intending to kill one in the group, but not knowing or caring which one can be convicted of attempted murder. The mental state required for attempted murder is the intent to kill a human being, not a particular human being.id: 20889
The indictment charging first degree murder with malice aforethought was sufficient to give notice of the first degree felony-murder theory as well.The trial court did not err in instructing on first degree felony-murder where the indictment charged only murder with malice aforethought. A pleading charging murder adequately notifies a defendant of the possibility of a conviction of first degree felony murder. Moreover, defendant was adequately notified where the indictment charged him with torture and kidnapping along with felony-murder special circumstances based on those theories.id: 20084
Because the juvenile petition described an offense that could only be first degree murder, the court did not err in failing to specifically find first degree murder.The minor argued the juvenile court’s failure to determine whether his crime was first or second degree murder mandated a finding that it was second degree. However, the petition specified that the minor committed a willful, deliberate and premeditated first degree murder, and the juvenile court found the allegations to be true. Because the language of the charge could only refer to first degree murder, the petition did not allege an offense that was divided into degrees and a finding of degree was therefore not required. id: 20714
“Kill zone” theory applies whether or not the defendant was aware that the attempted murder victims were within the zone of harm as long as the victims were within the zone.Defendant was convicted of the premeditated murder of Kristina Soult. She was also convicted of three counts of attempted premeditated murder involving the other three people who were at the site of the arson. She argued the convictions were improper because she did not know these people were present and therefore had no intent to kill them. She claimed that contrary to the instructions given and the prosecutor’s argument, the “kill zone” theory (defendant is responsible for killing of the intended target victim and all others in the zone of fatal harm caused by the defendant) requires a knowledge of the presence of the alleged victims before a defendant can be convicted of the attempted murder of those persons. However, the “kill zone” theory applies whether or not the defendant is aware that the victims were within the zone of harm.id: 20713
Aggravated assault is not a necessarily included offense of involuntary manslaughter. Defendant argued he was improperly convicted of both aggravated assault and involuntary manslaughter, because the former is a lesser included offense of the latter whenever an assault results in the death of the victim. However, because as involuntary manslaughter can occur in the commission of a lawful act without due caution and circumspection, which act need not be such as would probably and directly result in a battery, aggravated assault is not a necessarily included offense of involuntary manslaughter.id: 20617
There is no authority to support a theory that a “failure to act” can constitute an “intentional act” for second degree implied malice murder.Defendant who was convicted of capital murder argued the trial court erred by failing to instruct on second degree implied malice murder based on a theory that the victim died as a result of his failure to take her to the hospital knowing she was seriously injured. However, that theory was not raised in the trial court. Moreover, there is no authority to support the theory that the “failure to act” can constitute an “intentional act” for implied malice murder. Finally, defendant’s testimony did not show he knew that not taking the victim to the hospital would result in her death.id: 20516
Knowledge of the existence of a fetus is not prerequisite to fetal murder.Defendant was convicted of first degree murder of a woman and second degree murder of her unborn fetus. The trial court did not err in giving the prosecutor’s special instruction that knowledge of the fetus’s existence was not a prerequisite to that murder conviction. id: 20564
Evidence supported defendant's convictions for assault on a child causing death and implied malice murder where she failed to protect the child from his abusive father.Defendant was the mother of a one-year old child who died following abuse by his father. Defendant was an aider and abettor of assault on a child resulting in death, second degree murder and willfully causing a child to suffer. A parent has a duty to protect his or her young child and may be criminally culpable as an aider and abettor for an assault causing death and on an implied malice theory for murder where the parent fails to take steps reasonably necessary for the child's protection, so long as the parent, with the ability to do so, fails to take those steps with the intent of facilitating the perpetrator's assaultive offense. The evidence was sufficient to support defendant's guilt for the child's death under either theory.id: 20206
Attempted murder with express malice can support a conviction of first degree murder under the provocative act theory.Defendants were convicted of the first degree murder of Sanchez who was an accomplice in the attempted murder of Harris who reacted by stabbing Sanchez. Defendants argued that attempted murder is not one of the felonies enumerated in Penal Code section 189 for which a defendant can be found liable for first degree murder. Therefore, they argued that if they were found liable for murder under the provocative act theory based on there attempted murder of Harris, the murder was of the second degree. However, the murder was not based on a provocative act implied malice theory that could have resulted in second degree murder. It was based on defendant's express malice in attempting to kill Harris. Defendant's mental state - express malice, willfulness, deliberation and premeditation in attempting to kill Harris, transferred to the killing of Sanchez making defendants liable for first degree murder.id: 20217
Evidence supported provocative act murder conviction where defendants relentlessly chased and assaulted the person who responded with lethal force against an accomplice.Defendants and two accomplices attacked, beat and stabbed the victim. The victim also drew a knife and stabbed and killed one of the accomplices. Evidence supported the defendants' conviction of first degree murder of the deceased accomplice under the provocative act theory. The jury could have found that by relentlessly pursuing and attacking the victim defendants knew there was a high probability of a lethal response.id: 20215
Viability of a fetus is not an element of fetal murder under section 187, subdivision (a).Viability is not an element of fetal homicide under Penal Code section 187, subdivision (a). The third-party killing of a fetus with malice aforethought is murder under section 187, subdivision (a), as long as the state can show that the fetus was progressed beyond the embryonic stage of seven to eight weeks. However, this interpretation of section 187, subdivision (a) represents a major change in the law and due process requires that it be applied prospectively only and not to defendant. Moreover, since the instruction given, a modified version of CALJIC 8.10, lowered the viability threshold as it existed at the time defendant's murder conviction was reversed.id: 10178
The trial court did not err in selecting a target offense for the natural and probable consequences doctrine.Defendant was convicted of attempted murder based on the
natural and probable consequences doctrine. The trial court acted within its discretion when it rejected the prosecution's identification of breach of the peace as a target offense, but stated it intended to allow the target offense of assault with a deadly weapon, and then heard the argument. The trial court's actions complied with its duties under People v. Prettyman (1996)14 Cal.4th 298) and resulted in an increase in the prosecution's burden of proof.id: 19354
Defendant who kills a pregnant woman may be liable for second degree implied malice murder of the fetus.A defendant shoots a woman, killing her. As a result, her fetus dies also. The defendant may be held liable for the second degree implied malice murder of the fetus, without evidence that he knew the woman was pregnant.id: 17811
Supreme Court reverses Ninth Circuit finding that manslaughter jury instruction violated due process.At her state murder trial, defendant claimed that she killed her husband after he had attacked her. The trial court instructed the jury that defendant was guilty only of manslaughter if she killed her husband out of an honest but unreasonable belief that she had to defend against "imminent peril." The court defined "imminent peril" as peril that a reasonable person would believe must be dealt with. California law does not require, however, that a defendant's perception of imminent peril be reasonable. In closing, the prosecutor correctly informed the jury that defendant must show that she honestly, if unreasonably, believed herself in "imminent peril." In McNeil v. Middleton, 344 F.3d 988 (2003), the Ninth Circuit held that the court's inclusion of a reasonable person standard in the definition of "imminent peril" violated due process. The Supreme Court summarily reversed holding that not all jury instruction errors rise to the level of a due process violation, that the trial court's imminent-peril definition was no so likely to have misled the jury as to violate defendant's rights, and that the prosecutor's comments alleviated any error.id: 17882
Supreme Court allows judicial abrogation of murder rule to be applied retroactively.At common law, a person could not be convicted of murder unless the victim died within a year and a day. In defendant's case, the Tennessee Supreme Court abolished the common law rule and then applied its decision to uphold defendant's conviction. In a 5-4 opinion written by Justice O'Connor, the Supreme Court found no violation of due process in applying the new rule retroactively. The ex post facto clause does not apply directly to judicial decision-making, but similar limits on retroactive application of judicial decisions "are inherent in the notion of due process." Nevertheless, the majority held that judicial abrogation of the "year-and-a-day" rule was not unexpected or indefensible, and therefore applying the new judicial rule retroactively did not offend the fair warning principle of the Due Process Clause. Justices Stevens, Scalia, Thomas and Breyer dissented.id: 15127
Implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another.Defendant was convicted of second degree murder based on implied malice after her dog attacked a neighbor in the hallway of an apartment building. The trial court in granting a new trial motion erred in finding implied malice requires a defendant's
awareness that his or her conduct had a high probability of resulting in death. The Court of Appeal also erred by finding implied malice is established if the defendant knew his or her
conduct risked causing death or serious bodily injury. Instead, malice is implied when the defendant is aware he or she is of engaging in conduct that endangers the life of another.id: 19664
The unlawful penetration with a foreign object and resulting homicide did not merge within the meaning the Ireland merger doctrine.Defendant was convicted of first degree murder along with the special circumstance that it occurred during the unlawful penetration with a foreign object pursuant to Penal Code section 190.2, subd(a)(17). The offenses did not merge within the meaning of People v. Ireland (1969) 70 Cal.2d 522, because the unlawful penetration with a foreign object had an independent felonious purpose, namely to sexually arouse.id: 19956
Charging murder without specifying degree did not preclude first degree murder and the failure to charge felony murder was harmless in light of the felony murder special circumstances. Defendant argued the trial court erred in instructing the jury on first degree premeditated murder and first degree felony murder because the information charged defendant only with "malice murder" under Penal Code section 187 and felony murder under section 189. However, when an information charges murder without specifying the degree, it is sufficient to charge murder in any degree. Moreover, defendant was on notice regarding the felony murder where the information charged both a burglary and robbery special circumstance.id: 19666
The trial court properly instructed on the doctrine of transferred intent in relation to the gang-murder special circumstance allegation.Defendant argued the gang-murder special circumstance set forth in Penal Code section 190.2, subd.(a)(22) cannot be applied to a person who intended to kill one person but ultimately killed someone else. However, the special circumstance must be interpreted to incorporate the doctrine of transferred
intent, and defendant's reliance on the rule of lenity lacked merit. The special circumstance may be upheld where a defendant, an active member acting on behalf of the gang, has performed an act with an intent to kill that resulted in the killing of any individual.id: 18971
Evidence that defendant waited for hours in his house for the victim to come home with potential weapons around the house established concealment and surprise for lying-in-wait. Defendant argued the trial court erred by instructing the jury on murder by lying-in-wait (Penal Code section 189) because there was insufficient evidence of concealment and surprise. However, the evidence shows telephone conversations between defendant and the victim before 5:00 a.m. on the day of the murder resulting in the victim entering her home expecting to discuss her marital problems with defendant/husband. Defendant waited at the house for hours and placed certain killing implements around the house including a baseball bat and rope that would allow for a surprise attack. Moreover, contrary to defendants claim, prior threats to the victim did not negate the concealment and surprise. id: 18975
Instructions properly focused on whether defendant's act in starting the fire proximately caused the deaths of the pilots, and the court did not err in excluding evidence showing possible superseding causes.Firefighter pilots responded to a fire in a wooded area caused by an explosion from defendant's methamphetamine lab. Two planes collided and the pilots were killed. Defendant was convicted of manufacturing methamphetamine and recklessly starting a fire that caused the two deaths. He argued the intervening acts of the pilots and others were superseding causes that absolved him of responsibility for the two deaths. Contrary to defendant's claim, the instructions that 1) the contributing act of the victim is not a defense, and 2) an intervening act that is so unforeseeable and disconnected may be a superseding cause, correctly state the law and were not conflicting. The latter was not inadequate for failing to define "disconnected." Moreover, the court did not err in excluding evidence defendant claimed could have been considered an unforeseeable superseding cause, including evidence that one pilot had a .44 blood alcohol content, failed to comply with regulations requiring radio contact, suffered a loss of capacity due to dehydration and loss of orientation, and evidence that he failed to properly maintain his plane. Since the jury necessarily found the fatal collision was a foreseeable consequence of the forest fire, excluding the evidence was proper.id: 18584
California's murder statute protects fetuses with fatal conditions.Defendant argued that California's murder statute does not apply to the killing of a fetus that, even absent criminal intervention, would not have survived until birth due to a fatal physical or medical condition, and thus, the trial court erred in excluding evidence that the fetus suffered from such a condition. However, just as the murder statute protects human beings who are suffering from fatal conditions and have little time to live, it protects fetuses with fatal conditions.id: 18355
Evidence supported conviction of murder after defendant punched his pregnant girlfriend forcing the delivery of a child that died from another condition.Defendant punched his pregnant girlfriend several times. The doctor performed an immediate Caesarean section and the baby later died. Defendant argued he could not be convicted of murder because the fatal act occurred before birth. However, the law looks to the victim's status at the time of death rather than at the time of the act. Because Marcel was a human being when he died, the murder conviction was proper. Moreover, evidence supported the conviction despite Marcel's debilitating birth condition because it was the premature delivery following the beating that rendered him vulnerable to the condition that killed him.id: 17942
Provocative act doctrine applied to a high-speed chase initiated by defendant following a robbery where the police car struck and killed an innocent motorist.A police car struck and killed an innocent motorist during a high-speed chase following a residential robbery. Defendant was convicted of first degree murder based on the "provocative act" theory of murder. He argued the doctrine only applies "to deaths by gunfire at the hands of persons other than the felons." While provocative act murder has traditionally involved cases where the defendant instigates a gun battle, it is not limited to such situations. Since defendant's attempt to escape the scene of a robbery by engaging in a high-speed, dangerous chase was an intentional act committed with a conscious disregard for life, the provocative act doctrine applies.
id: 17857
Trial court erred in reducing second degree murder conviction to voluntary manslaughter where defendant provoked the victim in the deadly encounter.In appropriate cases, trial judges may reduce a conviction of murder to voluntary manslaughter based on insufficiency of the evidence to support the greater charge. Here, the court ruled defendant could not be guilty of murder since his conduct, however reprehensible, consisted only of words until he was physically attacked. However, a defendant who provokes a physical encounter by rude challenges to another person to fight, coupled with threats of violence and death to that person and his entire family, is not entitled to claim that he was provoked into using deadly force when the challenged person responds with apparent or actual use of such force. The second degree murder conviction was reinstated.id: 17650
Penal Code section 664, subd.(a) does not require personal willfulness, deliberation, and premeditation on the part of an attempted murderer.Defendant argued that Penal Code section 664, subd.(a), which provides a life term if an attempted murder is willful, deliberate and premeditated, requires that the attempted murderer personally acted willfully and with premeditation if he or she is guilty as an aider and abettor. However, the provision requires only that the murder attempted was willful, deliberate and premeditated, but does not require that an attempted murderer have that state of mind, even if he or she is guilty as an aider and abettor.id: 17516
California's murder statute protects fetuses who are suffering from fatal conditions.Defendants argued that California's murder statute (Penal Code section 187, subd.(a)), does not apply to the killing of a fetus that, even absent criminal intervention would not have survived until birth due to a fatal physical or medical condition; thus the court erred by excluding evidence that the fetus suffered from such a condition. However, just as the murder statute protects functioning human beings who are suffering from fatal conditions and have little time to live, it protects fetuses suffering from fatal conditions.id: 17424
Defendant's prior alcohol-related uncharged conduct was properly admitted to establish implied malice in the present collision in which defendant was not drinking.Defendant was convicted of "vehicle murder" - second degree murder based on implied malice following a high speed collision. He was not under the influence of drugs or alcohol at the time. The trial court admitted evidence of prior alcohol-related traffic incidents to prove implied malice. Defendant argued the prior uncharged conduct lacked relevance in the present case since alcohol was not involved in the accident and the evidence amounted to improper propensity evidence. However, for purposes of the Evidence Code section 1101, subd.(b) analysis, it does not matter that the previous misconduct involved alcohol as long as the driving was reckless. Moreover, the probative value of the evidence outweighed its prejudicial impact under section 352. Assuming the admission of the evidence was erroneous, the error was harmless in light of the overwhelming evidence of recklessness in support of the implied malice finding.id: 17354
25 years-to-life sentence for child homicide did not violate due process by providing the same term as first degree murder without requiring proof of malice.Defendant was convicted of assaulting a child under the age of eight by means of force likely to result in great bodily injury resulting in death. (Penal Code section 273ab.) He argued the statute violates due process by requiring a 25 years-to-life penalty for a general intent assault - the same as for first degree murder - without requiring proof of malice. However, it is immaterial that the punishment for section 273ab is the same as first degree murder. The Legislature exercised its prerogative in selecting the range of punishment, and the law does not preclude the same punishment for different crimes.id: 17359
Assault on a child resulting in death provision does not deny due process even though it imposes a 25 years-to-life term without requiring proof of malice aforethought.Defendant was convicted of the assault of a child resulting in death pursuant to Penal Code section 273ab. He argued the provision violates due process as it seeks to impose a 25 years-to-life term on an accused without having to prove malice aforethought. Contrary to defendant's claim, legislative motive is not the determining factor for court scrutiny of a due process attack. The Legislature sought to criminalize an attack on a child with the general intent to commit an aggravated assault which resulted in death. The general presumption supporting legislative action prevailed in this case.id: 17023
Assault on a child resulting in death is not a lesser included offense of murder.Defendant was convicted of second degree murder and assault on a child resulting in death under Penal Code section 273ab. He argued the latter was a lesser included offense of the former even though it carries a greater sentence. The state argued that section 273ab was the "greater" offense because of the sentence. However, the two provisions target different conduct, and one is not necessarily included within the other. The conviction of both counts was proper.id: 17024
A capital defendant may not plead guilty to murder and leave it up to the court, under section 1192, to determine the degree of the murder.Defendant was charged with capital murder. He sought an order directing the trial court to accept his offer to plead guilty to the charge of murder, leaving it to the trial court, sitting without a jury, to determine the degree of the murder pursuant to Penal Code section 1192. However, section 1192 does not apply to first degree murder with special circumstances. Where the language of the felony information charges a defendant with only first degree murder, he or she may plead guilty to first degree murder, but may not plead guilty to murder in an unspecified degree or utilize the procedures of section 1192 to determine the degree of the offense. However, contrary to the state's claim, the recent U.S. Supreme Court decisions in Apprendi and Ring do not prevent the state from allowing a defendant to waive his right to have a jury determine the degree of murder.id: 17038
Defendants convicted of baby-shaking resulting in death are not similarly situated with those who murder children.Defendant was convicted of violating Penal Code section 273ab - aggravated assault on a child resulting in death. The statute requires a 25 years-to-life prison term. Defendant argued she was denied equal protection of the law since the intent requirement for section 273ab is no more than that required for simple assault yet the sentence exceeds the term for second degree murder which requires an intent to kill. However, the element of the care and custody of the child (rather than the assault) distinguishes section 273ab from murder. Therefore treating murderers and those who violate section 273ab differently bears a rational relationship to a legitimate state interest.id: 16594
Voluntary manslaughter based upon a sudden quarrel or heat of passion does not require an intent to kill.When a killer intentionally but unlawfully kills in a sudden quarrel or heat of passion, the killer lacks malice and is guilty only of voluntary manslaughter. The same is true of a killer who, acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion.id: 16510
Intent to kill is not an element of voluntary manslaughter when it is based on imperfect self-defense.A defendant who acts with a conscious disregard for life and the knowledge that the conduct is life-endangering, unintentionally but unlawfully kills while having an unreasonable but good faith belief in the need to act in self-defense, is guilty of voluntary manslaughter.id: 16511
Two people may be convicted of first degree murder in a single-fatal-bullet case.Two defendants were rival gang members who fired shots at each other, killing an innocent bystander in the process. The victim was struck by a single bullet and it could not be determined who fired the shot. Codefendant Gonzales was convicted of first degree murder as the prosecution proceeded on separate theories of premeditation, and intentionally discharging a firearm from a vehicle intending to kill. The Court of Appeal reversed the conviction finding concurrent causation cannot be established in a single-fatal-bullet case. However, the Supreme Court reversed the decision of the Court of Appeal. The circumstance that it cannot be determined who fired the single fatal bullet, i.e., that direct or actual causation cannot be established, does not undermine defendant's first degree murder conviction if it is shown beyond a reasonable doubt that his conduct was a substantial concurrent cause of the death.id: 16464
Jury need not agree on the specific provocative act which triggered liability for murder.The trial court did not err by informing the jury that unanimity was not required about which intentional act that he committed triggered liability for murder. The jury need only agree on guilt of the charged crime and not on the theory.id: 16482
Evidence supported provocative act murder where defendant pistol-whipped the robbery victim who in turn shot defendant's confederate.Defendant argued the evidence was insufficient to prove murder under the provocative act murder doctrine. The evidence showed that he pistol-whipped the robbery victim. A provocative act is something beyond that which is necessary to commit a robbery. The record supports the conclusion that the fear that prompted the robbery victim's killing of defendant's confederate arose as a result of defendant's pistol-whipping.id: 16483
Only concealment of purpose, as opposed to physical concealment, is necessary to establish lying in wait.Physical concealment is not an element of murder by means of lying in wait. It is sufficient that a defendant's true intent and purpose were concealed by his conduct.id: 16422
Exclusion of feticide from manslaughter does not violate the Eighth and Fourteenth Amendments.Defendant argued his rights under the Eighth and Fourteenth Amendments were violated because California law does not include manslaughter as a crime in the death of a fetus. However, that California law does not provide for the crime of manslaughter of a fetus does not result in an unreliable death eligibility determination if a defendant is charged with a multiple murder special circumstance for the deaths of a pregnant woman and her fetus.id: 15422
Guilty verdict of child abuse resulting in death under section 273ab was not inconsistent with the guilty verdict of involuntary manslaughter.Defendant argued the guilty verdict of child abuse resulting in death was inconsistent with the verdict of involuntary manslaughter, which was rendered as a lesser included offense of murder. However, the victim died of shaken baby syndrome at defendant's hands. Involuntary manslaughter was supported in the record where evidence showed defendant did not intend to kill the victim but caused her death by committing child abuse without due caution and circumspection. Evidence also supported the verdict under Penal Code section 273ab where the child victim died at the hands of a caretaker who used force that a reasonable person would believe was likely to cause great bodily injury. There was no factual inconsistency in the two verdicts.id: 15423
Section 12022.9 is not a lesser included or lesser related offense of fetal murder, but rather a sentence enhancementDefendant was convicted of the first degree murder of his wife, who was eight months pregnant and second degree murder of the fetus. The year after the killing, Penal Code section 12022.9 was enacted, and that section imposes an additional five year term for an attack on a pregnant woman which results in termination of the pregnancy. Defendant argued section 12022.9 should have been used in his case as a lesser included offense or lesser related offense to fetal murder. However, section 12022.9 does not define a substantive offense, but rather a sentence enhancement.id: 15426
A defendant's provocative-act murder conviction can be based on the provocative act of a deceased accomplice who is not the alleged murder victim.Defendant was convicted of provocative-act murder. Contrary to his claim, such a conviction can be based on the provocative act of a deceased accomplice who is not the alleged murder victim. Moreover, the fact that the victim pointed a gun at another person after the accomplice had pointed a gun at him did not relieve defendant of liability because the victim's actions were not the sole cause of his own death.id: 15418
Evading police while driving in willful or wanton disregard for the safety of others is an inherently dangerous felony for purposes of second degree murder.Driving in a willful or wanton disregard for the safety of persons or property while evading a peace officer, pursuant to Vehicle Code section 2800.2, is an inherently dangerous felony for second degree murder purposes. The 1996 amendment to section 2800.2 did not make the "willful or wanton disregard" standard less serious in the abstract, thereby removing it from the list of inherently dangerous felonies.id: 15421
All conspiracy to commit murder is necessarily conspiracy to commit first degree murder.The crime of conspiracy to commit murder is not divisible into degrees. It is a unitary offense for which the punishment is that prescribed for murder in the first degree in every instance.id: 15295
Trial court erred in dismissing murder of a coconspirator in an auto accident staging scheme where a fatality resulted from a staged accident.Defendant was an administrative assistant in a law office. She entered into an arrangement with a third party to refer accident victims to the law office for a fee. Defendant became aware that most of the referrals were the product of staged accidents. In a staged accident, a victim was killed when a large truck overturned onto his car. Defendant was charged with murder, conspiracy and insurance fraud. The trial court erred in dismissing the murder charge. There was probable cause to believe defendant was a coconspirator in the staged fatal accident. As such, she was liable for the natural and probable consequences of the object of the conspiracy. The death was a probable and natural consequence of the planned collision. Because defendant may be criminally responsible for the acts of her coconspirator, she may be held to answer for murder.id: 15304
25 years to life murder term as provided in the section 190 initiative could not be reduced to a 15 year-minimum term which accompanied the gang enhancement under section 186.22.Defendant was convicted of first degree murder and attempted murder. He received a sentence of 25 years to life for the personal discharge of a weapon under Penal Code section 12022.53, subd.(d). He also received a three year term where it was found the murder was intended to benefit a street gang under section 186.22, subd.(b)(1). He argued the three year term was erroneous and the effect of the section 186.22 finding was that he could be considered for parole under a 15 year minimum term. However, the 15 year-minimum term specified in former section 186.22, subd.(4), which was the result of legislative enactment cannot reduce the 25 years to life term specified in section 190 which was the result of a voter initiative. Since the 15 year-minimum term did not apply, the court properly applied the three year determinate term under section 186.22, subd.(b)(1). However, the 15 year-minimum term for the premeditated attempted murder (count two) was fully applicable since that term was imposed by the Legislature under section 664, subd.(a). Finally, defendant was entitled to presentence credits for his time served.id: 14856
Gross vehicular manslaughter while intoxicated (under section 191.5) is not a lesser included offense of murder.Gross vehicular manslaughter while intoxicated (under Penal Code section 191.5, subd.(a) is not a lesser included offense of murder and thus a defendant may be convicted of both offenses arising out of the same act.id: 14858
An aider and abettor may be convicted of greater homicide-related crimes than the actual perpetrator.An aider and abettor may be guilty of greater homicide-related offenses than those the actual perpetrator committed. The aider and abettor's guilt is not entirely vicarious. Rather, it is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.id: 14834
Involuntary manslaughter is not a lesser included offense of voluntary manslaughter.Defendant was found not guilty of murder and of the uncharged lesser included offense of involuntary manslaughter. The jury was unable to decide whether she had committed the uncharged lesser included offense of voluntary manslaughter. Defendant argued that double jeopardy barred a second trial on the voluntary manslaughter charge because involuntary manslaughter is a lesser included offense of voluntary manslaughter and her acquittal of the latter offense served as an implied acquittal of the former. However, voluntary manslaughter can be committed without committing involuntary manslaughter, and thus the latter is not a lesser included offense of voluntary manslaughter.id: 10160
Mention of implied malice did not establish that the court impermissibly used that theory to find first degree murder and attempted murder.Appellant argued the court impermissibly based its findings of first degree murder and attempted murder on the theory of implied malice. However, the record revealed that the court was discussing the elements of implied malice solely with regard to the issue of transferred intent. The point the court was making was the defendants' cognizance of the victims' existence did not change the fact that they intended to kill since they did not care who would be killed by their actions, which exhibited a conscious disregard for life in general.id: 10161
Mistrial on intentional murder charge did not preclude death sentence for murdering intentionally.Petitioner was charged with intentional murder and felony murder for killing during a rape. The jury found him guilty of felony murder but left the remaining verdict sheets blank. He was sentenced to death on the ground that he committed the murder intentionally. In this habeas corpus appeal, petitioner argued that the jury's failure to convict him of intentional murder was an acquittal and that therefore sentencing him based on the intentional murder aggravating circumstance violated double jeopardy and the doctrine of collateral estoppel. In a 7-2 opinion written by Justice O'Connor, the Supreme Court found no double jeopardy violation and held that the doctrine of collateral estoppel did not apply because the mistrial on the intentional murder count did not resolve the question of intentional murder in petitioner's favor. Petitioner could therefore properly be sentenced for committing the murder intentionally.id: 10162
Murder by lying in wait does not require a showing that defendants actually watched the victim's sleeping and waited for a moment before attacking.Evidence showed defendant drove to the victim's home early in the morning, parking on the side of the street to avoid attention. The jury could reasonably infer they chose the night because it could be expected the victims would be asleep. The defendant's used a key to silently gain access, cutting the chain door lock with a bolt cutter. In addition, they rotated the light bulb in the porch to break the connection. Cloaked in darkness, they traversed the hallway to the bedrooms and killed the victims. It was reasonable for the jury to conclude defendants concealed their murderous intention and struck from a position of surprise and advantage.id: 10163
Penal Code section 667.7 does not preclude the imposition of consecutive life terms on a defendant who commits several offenses, each of which is punishable under section 667.7.A defendant who has committed more than one violent felony, each of which independently would subject the defendant to a life term under Penal Code section 667.7, may receive consecutive life term sentences under section 667.7, and is not limited in a single proceeding under that statute to receive a potential sentence of a single life term. In imposing such life terms, the trial court retains discretion under section 669 to order that these terms be served either concurrently or consecutively.id: 10164
Physical concealment is not an essential element of lying-in-wait.After first spying victim walking down the street, defendant drove the van ahead of the victim, turned off its lights, and waited for his approach. When victim was parallel to the van he was called closer by an inquiry concerning the purchase of drugs. Defendant's true intent to murder victim was concealed throughout. The trial court properly instructed the jury on lying-in-wait.id: 10165
Prior drunk driving conviction alone is probative on the issue of subjective awareness of the risks to others caused by drunk driving for purposes of second degree murder and evidence that defendant participated in a program after conviction is not required.Defendant was convicted of second degree murder after killing someone in a drunk driving incident. What is admissible in such a case is evidence which serves to establish that defendant subjectively appreciated the risk to others associated with drunk driving. Defendant argued the court erred in admitting evidence of his prior drunk driving convictions because no evidence was presented that he attended a program offering detailed information about the risk to others associated with drunk driving. However, while a conviction for drunk driving, coupled with participation in a drinking driver program may arguably be more probative than a conviction without such participation on the issue of a defendant's subjective awareness of the risks of drunk driving, a conviction alone is probative on that issue, and thus, is admissible.id: 10167
Prior plea of guilty to related charges was not used against defendant in the capital trial despite defense counsel's reference to the earlier plea at sentencing.Defendant argued that his guilty plea to rape and attempted murder, entered before the victim died, effectively admitted all the elements of the capital murder, except causation, including intent to kill, and that the plea was improperly used against him without admonishment or waiver. However, although defense counsel used the prior plea and sentence to try and convince the court that defendant had already been sufficiently punished, that plea was not used against him in any way.id: 10168
Supreme Court upholds refusal to instruct on lesser included theft offense because second-degree murder instruction was given.Defendant was arrested with the murder victim's vehicle and other belongings. At his trial for first degree murder, the court refused his request for an instruction on theft as a lesser included offense, but charged the jury on second-degree murder. He was convicted of first-degree murder and sentenced to death. In an opinion written by Justice Souter, the Supreme Court affirmed, distinguishing <i>Beck v. Alabama</i>, 447 U.S. 625 (1980), which struck down a state statute prohibiting lesser-included offense instructions in capital cases. The court ruled that in this case the second-degree murder instruction insured the verdict's reliability, because it would be irrational to assume that the jury chose capital murder rather than second degree murder as its means of keeping a robber off the streets. Justices White, Marshall, Blackmun and Stevens dissented.id: 10170
The jury was not required to unanimously agree on the theory of malice in finding defendant guilty of second degree murder.Defendant argued he was denied due process because the jury was not required to unanimously agree on its theory of malice. However, the alternative formulations of malice contained in Penal Code section 188 are deeply rooted in judicial history and encompass comparable notions of culpability. Therefore, the jury was not required to unanimously agree on its theory of malice in finding defendant guilty of second degree murder.id: 10173
The revised CALJIC 3.40 correctly embodies the test of proximate cause.Appellant was convicted of first degree murder and second degree robbery. He argued the trial court erred by giving an erroneous causation instruction (CALJIC 3.40 1992 revision). However, the trial court properly instructed that for criminal liability to be found, the cause of the harm not only must be <U>direct</U>, but also not so remote as to fail to constitute the <U>natural</U> and <U>probable</U> consequences of defendant's act. The revised CALJIC 3.40 correctly embodies the test of proximate cause.id: 10174
There is no such crime as attempted involuntary manslaughter.Defendant was convicted of attempted voluntary manslaughter as necessarily included in the charge of attempted murder. He argued the court erred in failing to instruct sua sponte on the crime of attempted involuntary manslaughter. However, there is no such crime.id: 10175
Trial court is authorized to set the degree of the offense upon a guilty plea to murder despite the presence of a special circumstance allegation.The information charged defendant with two counts of murder and included a multiple murder special circumstance allegation. The People argued that because of the special circumstance allegation, the information, in effect, charged first degree murder to which defendant pleaded guilty and that the court was not authorized to set the degree of murder. However, the court was authorized to set the degree of the offense and did not err in determining the two counts of murder to be in the second degree.id: 10176
Trial court properly instructed on transferred intent where the only person killed was an unintended victim.Defendants who were convicted of second degree murder argued the trial court improperly instructed on the doctrine of transferred intent. They argued the doctrine was not applicable where the prosecution elects to seek convictions against both intended and unintended victims. However, only an unintended victim was killed and it is precisely in this circumstance the doctrine of transferred intent serves its function.id: 10177
Victim's failure to wear a seatbelt was irrelevant to the ultimate issue of the driver's criminal responsibility.Defendant was convicted of vehicular manslaughter. He argued the court erroneously excluded evidence of the victim's failure to wear a seatbelt. However, facts attacking legal causation are only relevant if the defendant's act was not a substantial factor in producing the harm or injurious situation. As the failure to use a seatbelt was merely an absence of an intervening force which, at best, might have broken the chain of the natural and probable consequences of defendant's conduct it was irrelevant to the ultimate issue of criminal responsibility.id: 10179
A delusional, psychotic system can be consistent with the premeditation and deliberation required for a first degree murder.Defendant argued the evidence was insufficient to support a finding that she harbored malice or that the killings were premeditated and deliberate because her delusional, psychotic system was incompatible with the careful thought and weighing of considerations necessary to find those elements. However, the mental process necessary for a finding of deliberation and premeditation is not dependent on the motivation for the act. Nor is the necessary mental process lacking when the considerations reflected on by the defendant were the product of mental disease or defect.id: 10136
A person charged with malice aforethought murder can be convicted of first degree felony-murder.Appellant argued the first degree murder convictions must be reversed because appellant was tried for first degree felony-murder, an offense codified in Penal Code section 189, while he was charged with a separate offense, murder-with-malice codified in section 187. <i>People v. Dillon</i>, (1983) 34 Cal.3d 441 does not prohibit a defendant to be charged with malice aforethought murder in violation of section 187 and convicted of first degree felony-murder in violation of section 189.id: 10137
A showing of lying in wait obviates the necessity of separately proving premeditation and deliberation.Defendant argued that proof that the killings was committed by lying in wait does not relieve the prosecution of independently proving premeditation and deliberation. However, lying in wait is the functional equivalent of proof of premeditation, deliberation and intent to kill.id: 10138
Collateral estoppel did not bar defendant's second degree murder conviction under an aiding and abetting theory where the principal was convicted of first degree murder and defendant was acquitted of first degree murder.Defendant argued his second degree murder conviction, under an aiding and abetting theory, must be reversed because Bailey, the only principal to be apprehended and charged, was convicted of first degree murder, while defendant was acquitted of first degree murder. However, the doctrine of collateral estoppel did not bar defendant's conviction. First, because Bailey's appeal is pending, there is no final judgment. Second, the record failed to show the basis for Bailey's conviction. Finally, defendant was present at the crime scene and participated in the criminal events.id: 10139
Construction company's failure to erect a barrier to protect its workers from drunk drivers, was not an intervening or superseding cause of the deaths of the two workers.Defendant drunk driver was convicted of two counts of second degree murder after his car struck two highway construction workers. He argued the construction company's failure to protect its workers from an oncoming truck was the superseding cause of death and the court erred in refusing to instruct on intervening and superseding cause. However, the preexisting failure to provide a barrier which would have prevented the effects of defendant's conduct cannot be an intervening or superseding cause, as a matter of law.id: 10140
Court did not err in allowing prosecutor in vehicular manslaughter case to argue a theory of liability based in part on his failure to insure that his passengers were restrained by a safety belt.Defendant was convicted of gross vehicular manslaughter while intoxicated (Penal Code section 191.5, subd. (a)). The trial court did not err in permitting the prosecutor to argue to the jury, in effect, that appellant's failure to insure that his passengers were restrained by seat belts could constitute the commission of an unlawful act or the commission of a lawful act which might produce death in an unlawful manner, within the meaning of section 191.5, subd.(a).id: 10141
Court did not err in excluding the opinion of the expert witness as to whether defendant actually formed the intent to kill.Defendant claimed he was denied due process by the trial court's exclusion of the opinion of his expert witness as to whether defendant actually formed the intent to kill. Contrary to defendant's claim, Penal Code section 29 excludes expert testimony as to the effect of voluntary intoxication upon his mental state. Even if section 29 did not support exclusion of the stricken testimony, the error in striking the ultimate opinion testimony was harmless given the expert's extensive testimony as to the effects of alcohol generally and specifically upon defendant's actual state of mind, coupled with the toxicologist's testimony that an intoxicated person might misperceive data, draw faulty conclusions, and make poor decisions.id: 10142
Court of Appeal refused to fashion a manslaughter crime for mercy killing.Defendant was convicted of second degree murder after assisting a friend infected with the AIDS virus commit suicide by strangulation. Defendant asked the Court of Appeal to fashion a manslaughter crime for a killing done at the victim's request, based on the absence of malice, which does not now expressly exist under California law. The court refused to do so.id: 10143
Defendant was properly charged with two counts of gross vehicular manslaughter notwithstanding the existence of the Vehicle Code section 23182 enhancement.Defendant was charged with and pled guilty to two counts of gross vehicular manslaughter. On appeal he argued that due to the existence of the Vehicle Code section 23182 one-year enhancement, he should have been charged with one count of gross vehicular manslaughter, with the death of the second victim alleged only as an enhancement to that offense. However, there was no error as the existence of the enhancement did not compel the prosecutor to abandon his charging discretion.id: 10144
Defendant was properly convicted of provocative act murder where his accomplice was killed by the robbery victim in self-defense after acts that far exceeded those necessary for robbery.Under the provocative act theory of murder, a person may be liable for the death of an accomplice. Defendant and his two accomplices made demands of the two victims for drugs and money and in the process shocked the victims with a stun gun and beat them with a baseball bat. When one accomplice displayed and cocked a handgun one of the victims struggled with the accomplice for the weapon and it discharged killing the accomplice. Defendant was properly convicted of provocative act murder where the acts of a defendant and the surviving accomplice were far beyond those necessary to rob the victims and those acts caused the victim to reasonably fear for his life and kill the accomplice in self-defense. The trial court erred in failing to define provocative act as life threatening. However, the court did instruct the act need to be performed with knowledge of the danger and conscious disregard for human life. These words essentially conveyed that the act must be life threatening.id: 10145
Defendant who committed second degree murder was properly sentenced under Penal Code section 667.7 rather than section 190.A defendant who is convicted of murder and who otherwise would be sentenced under Penal Code section 190 upon that conviction, must be sentenced under section 667.7 (the habitual offender provision predating the three strikes legislation) if he or she meets the requirements of habitual offender status specified under subdivision (a) of section 667.7.id: 10146
Defendant who provoked a gun battle may be guilty of proximately causing the murder of the victim who was killed by a third party during the gun battle.A defendant who provokes a gun battle by shooting at a victim may be guilty of proximately causing the murder of the victim, even if the victim is killed by shots fired by a third party during the gun battle. In such a situation, CALJIC 8.12 is properly modified by deleting the requirement, imposed in other contexts, that the death of the victim results from a reasonable response by a third party to defendant's acts. This reasonable response requirement is unnecessary and confusing. Derivative liability for homicide attaches under the provocative act doctrine, when the defendant's intentional provocative act proximately causes the death of a victim through the action of a third party.id: 10147
Defendant's exposure to a murder conviction based on a transferred intent theory was proper regardless of the fact they were also charged with attempted murder of the intended victim.Defendants shot at an intended victim, missed him, and killed another bystander. The doctrine of transferred intent may be used to assign criminal liability to a defendant who kills an unintended victim when the defendant is also prosecuted for the attempted murder of an intended victim.id: 10148
Evasion of arrest by use of a vehicle in wanton disregard for others is an inherently dangerous felony.Defendant argued the second degree murder conviction could not stand because violation of Vehicle Code section 2800.2 (viewed in the abstract) is not inherently dangerous. However, evasion of arrest by use of a vehicle in wanton disregard for others is fraught with violence. The felony committed by defendant was inherently dangerous.id: 10149
Evidence of defendant's prior drunk driving conviction, his probationary status arising therefrom and his attendance at alcohol awareness classes were admissible to establish gross negligence.Defendant was convicted of gross vehicular manslaughter while intoxicated (Penal Code section 191.5, subdivision (a)). Evidence of his prior conviction for driving under the influence, his probationary status arising therefrom, and his attendance at an alcohol awareness class following that offense were each admissible to establish gross negligence. This evidence combined with defendant's high blood alcohol content (.15 percent), his driving at high speeds and in a dangerous manner, was sufficient evidence of gross negligence to sustain a conviction under section 191.5, subdivision (a).id: 10150
Evidence of victim negligence was not relevant to proximate cause where defense counsel conceded there was no such negligence.Defendant was convicted of two counts of first degree murder as two police officers were killed while dismantling a bomb in defendant's garage. He argued the trial court wrongfully excluded evidence of victim negligence which was relevant to proximate cause. However, trial counsel repeatedly stated there was no negligence on the part of the victims. The disputed evidence<197>statements by the victims regarding the ease of the job and expert opinion that the bomb could have been moved to a safer place<197>would only be relevant if the officers conduct was so negligent that it rose to the level of an exonerating, superseding cause. Given counsel's repeated disapprovals of officer negligence, the evidence was properly excluded. Moreover, the court was not required to instruct on unforeseeable intervening causes.id: 10151
Felony child endangerment is not a necessarily included offense of torture murder.Defendant argued that the child endangerment conviction had to be reversed because it was a necessarily included offense of the torture murder. However, because the victims of torture murder can be adults, as well as children, it follows that torture murder does not necessarily include child endangerment.id: 10153
For purposes of first degree murder lying in wait need not be done with the intent to kill or injure.Defendant argued that CALJIC 8.25 is deficient because it does not require a finding that the lying in wait was done with the intent to kill or injure. Penal Code section 189, which defines murder of the first degree to include murder perpetrated by means of lying in wait, does not require the lying in wait to be done with the intent to kill or injure. All the statute requires is that the waiting and watching was done with the intent to gain advantage and take the victim unaware in order to facilitate the act which constitutes murder. Moreover, CALJIC 8.25 adequately instructs the jury that, to find defendant guilty of first degree murder on a lying in wait theory, the jurors must find the act constituting murder was perpetrated by means of lying in wait.id: 10155
Gross vehicular manslaughter while intoxicated is not a lesser included offense of murder.Gross vehicular manslaughter while intoxicated is distinguishable from manslaughter under Penal Code section 192 and is not a necessarily included offense of murder since one can commit murder without doing any of the acts described in section 191.5. Consequently, defendant could properly be convicted of both charges although the trial court correctly stayed the sentence on count 2.id: 10156
Habitual offender convicted of murder and assault should have been sentenced on the murder count under section 190 and under section 667.7 for the remaining counts.Defendant was convicted of murder and two counts of aggravated assault. The jury also found true all the allegations of force and the prior serious felony convictions which qualified defendant under Penal Code section 677.7, as a habitual offender of crimes involving force likely to create great bodily injury. The 20-year to life sentence the court imposed under section 677.7 was unauthorized. The defendant should have been sentenced on the murder count under section 190 and under section 667.7 for the assault counts. On remand the trial court is not limited by the prior unauthorized sentence. Moreover, defendant admitted the truth of the section 667.7 allegations because of a bargain with the court regarding an indicated sentence. Defendant will be allowed to withdraw those admissions prior to the resentencing despite the prosecutor's warning to defendant at the original sentencing that the sentence was improper, that it would be appealed, and defendant's waiver of the right to withdraw his admissions.id: 10157
Heat of passion may not be based upon revenge.Defendant was convicted of first degree murder. He argued the trial court erred in denying his request for voluntary manslaughter instructions based upon evidence of heat of passion. However, the evidence relied upon showed anger and a desire for revenge. Heat of passion may not be based upon revenge. Moreover, the heat of passion doctrine does not include drug dealers put out of sorts by the vicissitudes of their trade.id: 10158
In calculating the minimum period of confinement a defendant must serve under a section 667.7 life term the court must include any enhancement imposed for a prior serious felony conviction.Penal code section 667, subdivision (a)(2), does not preclude use of a prior serious felony enhancement as a component in the calculation of the minimum period of imprisonment that a defendant must serve under a section 667.7 life term. Rather, the minimum period of imprisonment required under the second and third alternatives must include as a component the term of any enhancement imposed under section 667, subdivision (a), for a prior serious felony conviction.id: 10159
Attempted murder is not divided into degrees.The crime of attempted murder is not divided into degrees. Therefore, the trial court did not err by failing to instruct the jury on the offense of attempted second degree murder.id: 9661
Although defendant was convicted of murder and accessory to the murder the court did not err in failing to instruct that the offenses were mutually exclusive.Defendant and his friends arrived at an apartment with weapons. An argument quickly developed and an innocent bystander was shot by defendant's friend who was aiming at Blackburn. Defendant was convicted of murder on an aiding and abetting theory. He argued the jury should not have been permitted to convict him of both murder and being an accessory to the same murder. However, the prosecution's theory of murder was based primarily on defendant's actions before and during the shooting incident. The theory for accessory guilt, in contrast, depended on defendant's help in concealing the shooter's jacket and gun and his false statement to the police. Under the circumstances defendant's responsibility both as an accomplice to the murder and for the separate crime of acting as an accessory to the murder was neither logically inconsistent nor legally prohibited.id: 9603
An aider and abettor can be punished for attempted murder under section 664, subdivision (a) even if he or she did not personally deliberate or premeditate.Defendant argued that one who aids and abets an attempted murder is not subject to the increased penalty for willful, deliberate and premeditated attempted murder under Penal Code section 664, subdivision (a) unless he or she personally deliberated and premeditated; and the trial court failed to so instruct. However, an aider and abettor can be subject to life imprisonment for willful, deliberate, and premeditated murder even if he or she did not personally deliberate or premeditate.id: 9605
Provision relating to the unlawful killing of a fetus was not void for vagueness.Appellant argued that his second degree murder conviction for the killing of a fetus must be reversed because Penal Code section 187 is void for vagueness. However, the provision makes no reference to viability of the fetus <197> which has been found to be vague in other jurisdictions, and provides ample notice of the prohibited conduct.id: 9499
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245