Jury Instructions (Murder)
Category > Jury Instructions (Murder)
Updated 3/6/2024The trial court erred in failing to instruct that conspiracy to commit murder requires express malice.The trial court erroneously failed to instruct the jury that conspiracy to commit murder requires express malice. However, the error was harmless where, based on the other instructions, the prosecutor’s argument, and the verdicts, the jury necessarily found the defendants guilty of conspiracy to commit murder on a proper theory requiring express malice or intent to kill.id: 26547
Updated 3/4/2024Evidence of provocation was sufficient for an instruction on heat of passion voluntary manslaughter where the victims were gang members who lunged at the defendants after asking where they were from.Defendants were part of a neighborhood tagging crew. They were convicted of one count of murder and three counts of attempted murder as they fired shots at the four victims. The victims were gang members who approached the defendants and said “Where the fuck you from? ... This is Eastside,” and then lunged at them. The trial court erred in refusing to instruct on voluntary manslaughter based on heat of passion as the victims’ statements constituted adequate provocation to support the instruction.id: 27375
Updated 3/4/2024Instruction on the kill zone theory that predated Canizales was erroneous.Defendants’ attempted murder convictions were based on the “kill zone” theory. However, the convictions were reversed because the court did not have the benefit of People v. Canizales (2019) 7 Cal.5th 591 at the time it instructed on the theory, and did not explain the prosecution’s burden to prove that the “only” reasonable conclusion from the defendant’s use of lethal force was that they intended to create a kill zone. Defendants could be retried on that theory with proper instructions.id: 27376
Updated 2/24/2024Erroneous “kill zone” instruction was harmless in attempted murder case given the overwhelming evidence that defendant intended to kill all five men at whom he shot. The trial court erred by instructing the jury that the element of specific intent to kill required for an attempted murder conviction could be found based on the “kill zone” theory. The instruction was erroneous following People v. Canizales (2019) 7 Cal.5th 591. However, the error was harmless in light of the overwhelming evidence that defendant intended to kill all five of the men at whom he shot.id: 26721
Updated 2/23/2024Canizales applies retroactively to defendant’s case and his attempted murder convictions based on the “kill zone” theory were reversed. The trial court improperly instructed the jury on the “kill zone” theory for the multiple attempted murder counts. On June 224th, 2019, the California Supreme Court held in People v. Canizales (2019) 7 Cal.5th. 591, that the theory only applies where the defendant intends to kill everyone present in his zeal to kill the victim. Canizales applies retroactively to defendant’s convictions, and the error was prejudicial under the facts.id: 26886
Updated 2/22/2024Kill zone instruction was improper where the evidence did not show that defendant intended to kill everyone in order to ensure killing the victim. There was insufficient evidence to support an instruction on the kill zone theory for the attempted murder counts. While the evidence showed defendant intended to kill Armando, it did not show that he intended to create a kill zone in order to do so.id: 26957
Updated 2/7/2024The trial court erred in giving the “kill zone” theory instruction where the defendants fired into a car intending to kill the victim. Defendants fired five shots into a car killing Raya, the intended target, but not Lott. They were convicted of the attempted murder of Lott under the “kill zone” theory. However, instructing on the kill zone theory was erroneous because the evidence did not support an inference that the defendants intended to kill Raya by killing everyone in the car.id: 27130
Updated 2/3/2024Chun error was not harmless in light of the firearm use finding as that finding did not establish the mental component of alternate theory of implied malice.Defendant was convicted of second degree murder after the court gave instructions on a felony-murder theory invalidated by People v. Chun (2009) 45 Cal. 4th 1172. The prosecution argued the error was harmless in light of the jury finding that defendant intentionally discharged a firearm. That would have led to a finding of implied malice murder. However, that finding failed to establish the mental component of implied malice, which requires a defendant act with a conscious disregard for life knowing that his act endangers life. id: 27725
Updated 2/3/2024Attempted murder conviction was reversed in a case where an innocent bystander was shot in a drive-by shooting where instructions were like the kill zone theory instructions rejected in Canizales. Defendant was driving a car where another occupant fired shots that struck an innocent bystander. He was convicted of attempted murder. The court gave an instruction that was akin to the improper kill zone theory that was invalidated in People v. Canizales (2019) 7 Cal.5th 591. The instruction allowed the jury to use circumstantial evidence to infer an intent to kill the victim when the same circumstantial evidence supported a reasonable inference of no intent to kill. The attempted murder conviction was reversed but since there was evidence to support the conviction under a different theory the prosecution can retry the defendant.id: 27768
Updated 2/1/2024Kill zone theory instruction failed to require a primary target and an intent to kill everyone nearby to make sure the primary target was killed.The attempted murder conviction was reversed due to a flawed “kill zone “theory” instruction where the prosecution failed to identify a primary target of the shooting and the instruction did not require the jury to find the defendant intended to kill everyone in the area around the primary target as a means of killing the primary target.id: 28010
Updated 1/31/2024“Kill zone” theory instruction should be given where there is substantial evidence that, if believed by a jury rather than an appellate court, would support an inference that defendant intended to kill everyone in the area.An instruction on the “kill zone” theory of attempted murder is appropriate if there is substantial evidence that, if believed by a jury rather than an appellate court would support a reasonable inference that defendant intended to kill everyone within the zone of harm. Evidence did not support the instruction in a case where defendant fired three shots into an open area where the alleged victims were positioned 25 feet apart where neither was hit.id: 28059
A “kill-zone” instruction is not appropriate absent evidence that the shooter had a primary target.Defendant was convicted of attempted murder following an incident where his confederate fired shots into a crowd while defendant attempted to move a disabled car. The trial court erred by instructing on a “kill zone” theory because that theory requires evidence that the shooter had a primary target when he began shooting, and the specific intent to kill everyone in the kill zone around the primary target to ensure the target’s death.id: 26114
The trial court erred by refusing to instruct on involuntary manslaughter given the evidence of an unlawful killing without malice. Defendant was convicted of second degree murder. However, the trial court erred by refusing to instruct on involuntary manslaughter as a lesser included offense because there was substantial evidence from which a reasonable juror could have doubted that defendant was aware his beating could have killed the victim who had a hidden spinal injury. The error was prejudicial where the refused instruction went to the heart of the defense case and the record showed the jury otherwise struggled with the issue.id: 26002
The improper response to a jury question permitted a murder conviction for conduct that amounted to accessary after the fact.The jury at defendant’s murder trial asked whether the commission of the crime included events that occurred after the shooting. The court’s response allowed the jury to convict defendant of second degree murder even if it found he formed the intent to aid and abet after the commission of the crime. The erroneous instruction required a reversal of the second degree murder conviction.id: 25874
The trial court erroneously instructed that the jurors need not be unanimous as to the theory of murder in a case where the two theories involved different degrees of murder.Defendant was convicted of first degree murder. The trial court erred by instructing with CALCRIM No. 548 that the jury need not agree on the theory of murder where the two theories the jury was considering involved different degrees of murder - felony murder and malice aforethought.id: 25813
The kill zone instruction did not allow jurors to convict defendant of something less than express malice for each attempted murder victim. Defendant argued the trial court instruction on the kill zone theory of attempted premeditated murder (CALCRIM No. 600) allowed the jury to convict him of all four counts of attempted murder if they intended to kill the person who died and at least one of the victims of the attempted murder counts. However, a reasonable juror would not have interpreted the instruction to allow for a conviction on something less than express malice or an intent to kill each victim.id: 25815
The trial court erred in responding to a jury question regarding attempted voluntary manslaughter by failing to say the prosecution must prove the absence of provocation. Defendant was convicted of premeditated and deliberate attempted murder. The trial court erroneously responded to a jury question regarding the requirements for an attempted voluntary manslaughter conviction based on heat of passion. The court incorrectly told jurors the prosecution was required to prove adequate provocation, and should have said the prosecution must prove the absence of provocation. However, the error was harmless where the jury’s finding of premeditation and deliberation is inconsistent with the defendant’s having acted under the heat of passion.id: 25568
The trial court erred by failing to instruct the jury at the murder retrial that defendant had previously been convicted of gross vehicular manslaughter while intoxicated. Defendant was convicted of second degree murder on retrial after a first jury had convicted him of gross vehicular manslaughter but could not reach a verdict on the murder charge. The trial court erred at the retrial by refusing to inform the jurors that defendant had been convicted in the first trial of gross vehicular manslaughter while intoxicated. The error required reversal of his second degree murder conviction. id: 24936
Absent evidence that defendant arrived before the victims or waited in ambush for their arrival, there was no basis to instruct on lying-in-wait first degree murder or the lying-in-wait special circumstance.There was insufficient evidence to support the instructions on lying-in-wait first degree murder, and the lying-in- wait special circumstance allegation. Defendant concealed his bicycle, approached and shot the victims from behind and then shot them again to make sure they were dead. However, there was no evidence that he arrived in the parking lot before the victims or waited in ambush for their arrival. Absent that evidence, the trial court erred by instructing on lying in wait.id: 24861
The attempted murder convictions were reversed because the use of the disjunctive “or” in the instruction permitted the jury to convict without finding specific intent as to each victim.Defendant was convicted of seven counts of attempted murder and other offenses. The trial court instructed with CALCRIM No. 600 on attempted murder, which it modified to include the “kill zone” theory of liability. However, the instruction given was erroneous because the use of the disjunctive “or” permitted the jury to convict without finding specific intent as to each victim.id: 24838
The trial court erred by equating criminal negligence with ordinary negligence in the instructions. Defendant was convicted of vehicular manslaughter with gross negligence. The trial court imprecisely identified gross vehicular manslaughter and misdemeanor vehicular manslaughter as crimes involving only a general criminal intent. The court also inaccurately equated the term “criminal negligence” with “ordinary negligence.” However, the court did not address the impact of the errors because it reversed the conviction for a separate instructional error.id: 25131
The trial court erred by failing to inform the jury that he had been convicted of gross vehicular manslaughter while intoxicated in his first trial.The trial court erred during defendant’s retrial by not informing the jury that he had been convicted in the first trial of gross vehicular manslaughter while intoxicated. The error required reversal of the second degree murder conviction because it was reasonably probable that the erroneous instruction was the determining factor why the second trial resulted in the murder conviction while the first trial did not. id: 25005
The trial court erred by failing to instruct the jury that it could consider evidence of defendant’s mental disabilities with respect to his claim of imperfect self-defense. The trial court erred by precluding the jury from considering evidence of defendant’s mental disabilities in deciding whether he harbored the state of mind required for imperfect self-defense. Defendant was the only witness who believed the victim pulled an object defendant believed to be a gun from his waistband. But a single witness, even if not inherently credible, can provide sufficient evidence to establish a fact. Based on defendant’s statement, the jury could have inferred the victim made a threatening motion. The jury could decide whether the statement was credible or delusional. Because the claimed error affected defendant’s substantial rights, it was not forfeited for lack of a request for the prompt instruction.id: 24749
The trial court prejudicially erred by instructing on the kill zone theory of attempted murder absent evidence that defendant intended to kill others in the crowd in an effort to kill the victim.Defendant fired his weapon at the victim at a crowded party after the victim had stabbed him. Because defendant had provoked the victim, the shooting was not justifiable self-defense. Nevertheless, defendant’s primary motivation was to defend himself. No witness testified that defendant sprayed everyone near the victim with gunfire in an effort to kill the victim. Therefore, the trial court erred by instructing on the kill zone theory of attempted murder.id: 24652
The trial court erred by failing to instruct that provocation over a few years regarding a bad relationship and custody battle could reduce first degree murder to voluntary manslaughter or second degree murder. Defendant shot her former boyfriend three times after years of strife - much of which centered around their three year-old son. She was convicted of first degree murder. The trial court erred by failing to instruct on provocation and heat of passion manslaughter given their acrimonious relationship and ongoing custody battle over the son. The instruction was warranted even absent some instigative final act. The court also erred by failing to instruct that provocation could reduce the offense to second degree murder for the same reason. However, the instructional errors were harmless given evidence of premeditation and lying-in-wait.id: 24437
The trial court erred by instructing that the jury did not have to agree on the theory of murder where one theory presented was first degree and the other was second degree.The trial court erred by instructing with CALCRIM No. 548 that the jury need not unanimously agree on the theory of murder. While jurors need not agree on the theory for first degree murder, they need to be unanimous in determining whether the murder was first or second degree. The distinction was not sufficiently emphasized. The matter was remanded to the trial court to give the prosecutor the option to retry the defendants or allow a conviction of second degree murder.id: 24169
The felony-murder conviction was reversed due to the lack of a correct instruction concerning the requirement that defendant must have aided and abetted the robbery at or before the time of the act causing death. The evidence showed defendant helped plan the robbery and acted as the getaway driver for the actual robber. However, the defendant testified he had no idea that the robber was going to commit any crime and he aided the robber when he saw him running from the store. The instructions given were prejudicially errorneous because they allowed defendant to be found guilty of felony murder even if he did not aid and abet the robbery until after the commission of the act that caused the victim’s death. The instructional error was not forfeited due to the lack of an objection.id: 24153
The trial court erred by instructing on the legally impossible theory of conspiracy to commit attempted murder. The crime of conspiracy to commit attempted murder does not exist. One cannot conspire to try to commit a crime and an agreement to commit a crime is required, even if nothing more that an overt act is ultimately done. The error was harmless as the jurors would have learned from other instructions that conspiracy to commit attempted murder was a legally impossible theory of vicarious liability.id: 24116
The trial court erred by instructing that an aider and abettor can be convicted of premeditated murder under the natural and probable consequences doctrine. In People v. Chiu (2014) 59 Cal.4th 155, the court held that an aider and abettor cannot be convicted of premeditated first degree murder under the natural and probable consequences doctrine. Here, the trial court erred by instructing a defendant who did not premeditate could be convicted under that theory. However, the error was harmless where the jury’s verdicts showed it convicted defendant of first degree murder under the alterative theory of lying-in-wait.id: 24117
The trial court erred by failing to instruct sua sponte that felony murder liability doesn’t attach to a defendant who aided and abetted the perpetrator after the killing.The trial court had a sua sponte duty to instruct that felony murder liability doesn’t attach to a defendant who aids and abets the perpetrator for the crime only after the killing. The instructional error was prejudicial under the Chapman standard where the jury could have found defendant began aiding and abetting in the burglary and kidnap after the victim was killed.id: 24095
The trial court erred in failing to describe willful, deliberate, and premeditated when instructing on attempted murder.Defendant’s conviction for willful deliberate and premeditated attempted murder was reduced to attempted murder where the trial court failed to instruct the jurors on the meaning of “willful” “deliberate” and “premeditated.” id: 23770
The trial court erred by failing to instruct on the lesser included offenses of premeditated murder where it was alleged in the information even though the prosecution pursued a felony murder theory.The trial court instructed the jury on first degree felony murder only, with robbery as the underlying felony. But the information alleged malice murder committed with premeditation and deliberation. The court erred by failing to instruct on the lesser offenses of second degree murder, voluntary and involuntary manslaughter where substantial evidence showed the lesser but not the greater offense of first degree felony murder was committed. The instructional error required reversal of the murder and robbery counts.id: 23953
The trial court erred by instructing that defendant could be guilty of first degree murder if it found the target crime of an uncharged conspiracy under a natural and probable consequences theory. In People v. Chiu (2014) 59 Cal.4th 155, the court found a defendant who is an aider and abettor cannot be convicted of first degree murder under a natural and probable consequences theory. It is also error to impose uncharged conspiracy liability for first degree murder under the natural and probable consequences doctrine and the trial court erred by instructing on that theory. The instructional error was prejudicial where the jury may have based its first degree murder verdict on the natural and probable consequences theory, and the remedy was to reduce the conviction to second degree murder or remand for retrial on first degree murder.id: 24021
The instruction on the “kill zone” theory of liability for attempted murder is misleading and legally erroneous.The trial court prejudicially erred by instructing the jury with CALJIC 8.66.1, a legally erroneous and misleading instruction on the “kill zone” theory of liability for attempted murder. The instruction fails to define “kill zone.” And although attempted murder is a specific intent crime, the instructions make no reference to specific intent. Finally, while the instruction speaks of “concurrent intent,” it fails to tie the concept to the specific intent necessary for attempted murder. id: 24053
Court erred in refusing to instruct on self-defense and lesser included offenses of voluntary manslaughter and simple assault where jury could have found defendants reentered victim's home to retrieve a pager and at most engage in a fist fight.Defendants were convicted of murder and conspiracy to commit assault with a deadly weapon, among other things. The trial court erred in failing to instruct on the lesser included offenses of voluntary manslaughter, conspiracy to commit assault, and assault, as well as the requested instructions on self-defense. While the evidence of defendants' intent was conflicting, a rational jury could have concluded defendant Baker, an acquaintance of the victim, returned to the victim's house to retrieve his pager and at most engage in a fist fight. If the victim so believed then his use of force could have been excessive, entitling Baker to defend himself. The error was prejudicial where the prosecutor emphasized in closing argument that the attack on the victim was unprovoked and unjustified.id: 15431
The trial court prejudicially erred by failing to instruct sua sponte on attempted voluntary manslaughter based on a sudden quarrel or heat of passion.Defendant was convicted of attempted murder. However, the trial court prejudicially erred by failing to instruct sua sponte on attempted voluntary manslaughter based on sudden quarrel or heat of passion. Retrial was permitted because the evidence supported the attempted murder conviction.id: 23455
The trial court erred by failing to instruct sua sponte on the lesser included offenses of second degree murder and manslaughter even though the prosecutor argued felony murder.Defendant was charged with first degree murder with malice and premeditation. The prosecutor argued the case as first degree felony murder. The trial court erred by failing to instruct on second degree murder and manslaughter, which are lesser included offenses of a premeditated and deliberate murder with malice. And there was substantial evidence to show the lesser offenses, but not the greater offense of first degree felony murder were committed. However, the instructional error was harmless since the jury found the robbery murder special circumstance to be true, which shows the jury would necessarily have convicted defendant of first degree felony murder even if it had been instructed on the lesser offenses. id: 23676
The trial court’s voluntary intoxication instruction failed to properly inform the jury it could consider evidence of intoxication on the issue of whether defendant killed with express malice.The trial court’s voluntary intoxication instruction failed to properly inform the jury that it could consider evidence of defendant’s intoxication on the issue of whether he killed with express malice. Defendant argued the instruction limited the jury’s consideration of the evidence of his intoxication, which was also relevant to the issues of provocation or imperfect self-defense. However, the defective construction was harmless given the strength of the evidence of deliberation and premeditation, and the fact that the jury necessarily rejected heat of passion and imperfect self-defense theories.id: 23448
The trial court’s failure to instruct that provocation could reduce murder to voluntary manslaughter was federal constitutional error and prejudicial under the Chapman standard.The trial court erred by failing to instruct on provocation or heat of passion as it bears on the culpability for homicide as it was warranted by the evidence. The error was originally analyzed for prejudice under the Watson test but was transferred back to the appellate court from the California Supreme Court to consider whether the failure constituted federal constitutional error. The instructional error denied due process because it relieved the prosecution of the burden to prove malice beyond a reasonable doubt. The error was prejudicial under the Chapman standard where it could not be found beyond a reasonable doubt that the instructional omission did not affect the second degree murder verdict.id: 23284
The “kill zone” theory of attempted murder did not apply where defendants did not target a specific person and did not try to kill everyone at the party.Two defendants fired 10 shots at a party where 400 people were present, killing two people and injuring a third. Seven bullets struck no one. They were convicted of two counts of murder and 60 counts of attempted murder. The trial court prejudicially erred by instructing on the “kill zone” theory of attempted murder that applies only if defendant chooses as a means of killing the primary target, to kill everyone in the area. Here, there was no primary target identified and defendants could not have attempted to kill everyone by firing 10 shots. That many people at the party were in danger did not justify instructions in the “kill zone” theory.id: 22987
When the provocative act murder theory is used the court should instruct that first degree murder requires proof that the defendant personally premeditated and deliberated the attempted murder that provoked a lethal response. Defendant recruited her brother and her boyfriend to assault Canas. When Canas gained the upper hand in the fight, defendant handed her boyfriend a loaded gun, but Canas took the gun and shot and killed the boyfriend. Defendant was convicted of attempted murder of Canas and the first degree murder of her boyfriend under the provocative act murder doctrine. The evidence supported the first degree murder conviction under those facts. However, the court erred in its instructions by cross-referencing CALCRIM No. 601 on attempted murder which incorrectly said the mens rea for the conviction could be satisfied if the boyfriend acted with premeditation and deliberation in attempting to kill Canas. However, the error was harmless where no reasonable juror could find defendant intended to kill Canas but did not personally act with premeditation and deliberation.id: 22780
The trial court prejudicially erred by failing to instruct that an unintentional killing without malice committed during the course of an inherently dangerous felony constitutes voluntary manslaughter. Defendant was convicted of second degree murder. The trial court prejudicially erred by failing to instruct the jury, sua sponte, pursuant to People v. Garcia (2008) 162 Cal.App.4th 18, that an unintentional killing committed without malice during the course of an inherently dangerous assaultive felony constitutes voluntary manslaughter. The court did not err in failing to instruct on involuntary manslaughter where there was insufficient evidence to show the death resulted from the misdemeanor offense of brandishing rather than a felony of assault with a deadly weapon.id: 22340
The failure to instruct on voluntary manslaughter based on heat of passion was prejudicial even though the jury returned a verdict on first rather than second degree murder.Defendant was convicted of first degree murder but the trial court erred in failing to instruct on voluntary manslaughter based on heat of passion where the shooting followed an argument between rival gang members. The erroneous omission of the instruction was not rendered harmless by the jury’s determination that the murder was of the first degree. And the evidence of guilt was not overwhelming where the prosecution’s evidence all came from members of the victim’s gang. Reversal of the conviction was required as the evidence was not so strong as to show a reasonable possibility that defendant would not have received a better result if the jury had been properly instructed.id: 21867
Instructional error on provocative act murder was harmless where the evidence showed defendant personally premeditated and deliberated the attempted murder. The trial court erred by instructing the jury with respect to the premeditation and deliberation in relation to the charge of provocative act murder. Specifically, the court instructed the attempted murder was done willfully and with premeditation and deliberation “if either defendant or Morales or bother of them acted with that state of mind.” However, the error was harmless where the evidence showed defendant, as opposed to her accomplice, personally premeditated and deliberated the attempted murder. id: 21930
Assault by means of force likely to produce great bodily injury under section 245, subd. (a)(1) is a lesser included offense of aggravated assault on a child resulting in death under section 273ab.Defendant was convicted of aggravated assault on a child under Penal Code section 273ab. She argued the court erred in refusing to instruct on assault by means of force under section 245, subd. (a)(1) as a lesser included offense. After reversing, the conviction on other grounds the court suggested the possibility without deciding, that the force element in section 273ab may be more restrictive than that in section 245, subd. (a)(1). Nevertheless, the court suggested section 245, subd. (a)(1) is a lesser included offense and the trial court should so instruct at a retrial if it finds substantial evidence of the lesser offense.id: 16595
Any error in failing to instruct on involuntary manslaughter was harmless where the jury necessarily determined defendant had the intent to kill.Defendant argued that, given the evidence regarding an accidental shooting, the trial court erred in failing to instruct, sua sponte, on involuntary manslaughter. However, any error in failing to so instruct was harmless as the defendant was convicted of first degree murder and the jury necessarily found an intent to kill.id: 10184
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
Court erred in instructing on felony murder where the case was tried on a theory of first degree torture-murder.Defendant was tried on a theory of first degree torture-murder with a special circumstance of torture. The trial court erred in instructing on felony murder because felony murder was not in issue. The error was harmless where the jury specifically found that the murder was committed with the intent to kill and that it involved the infliction of torture.id: 10207
Failure to instruct on lesser offense of vehicular manslaughter without gross negligence was harmless where jurors necessarily rejected defendant's testimony that another car must have collided with the victim.Defendant was convicted of vehicular manslaughter. He argued the court erred in failing to instruct on the lesser offense of vehicular manslaughter without gross negligence. The evidence supporting such a theory was defendant's testimony that he merely exceeded the speed limit and another vehicle must have collided with the victim's car causing the injury. While the evidence was improbable, it supported the lesser offense. However, any error was harmless where the jury rejected the defense under other properly given instructions.id: 10224
Instruction on concurrence of act and specific intent erroneously omitted the crime of murder.The trial court erred insofar as its instruction on the concurrence of act and specific intent included the counts for robbery and auto theft but did not include the crime of murder. However, the error was harmless where another instruction expressly required a finding of intent to kill for first degree murder. The court did not err insofar as its instruction on the concurrence of act and specific intent did not include the felony-murder special circumstance because the instruction applies only to crimes and not special circumstances.id: 10230
Instructing on implied malice in felony murder case was harmless given the proper instruction.The trial court erred in instructing with CALJIC 8.11 on implied malice because the case was prosecuted on a felony-murder theory and malice was irrelevant. However, in light of the specific and clear instructions on the requisite intent for felony murder, there was no reasonable likelihood the erroneously given implied malice instruction would have misled the jury in assessing defendant's culpability for the special circumstances charged.id: 10229
The trial court's error in giving the general intent instruction was harmless as the other instructions informed the jury that defendant needed to have actual knowledge of his duty to register as a sex offender.Defendant was convicted of failing to register as a sex offender under Penal Code section 290, subd.(g)(2). He argued the court erroneously modified CALJIC No. 1.20 by adding the language "and failed to do so" at the end of the instruction, such that the instruction negated the "willfulness" element. However, the instruction defined willfulness and told the jury it must find defendant had actual knowledge of the duty to register and failed to do so. While the court erred by giving CALJIC No. 3.30, the general intent instruction, the error was harmless as the instructions as a whole informed the jury the defendant need have actual knowledge of the duty to register.id: 18328
Intent to kill is a required element of the crime of conspiracy to commit murder.Intent to kill is a required element of conspiracy to commit murder. Therefore, the trial court erred in instructing the jurors on the principles of implied malice second degree murder in connection with the determination of whether the defendants could be found guilty of conspiracy to commit murder, since implied malice does not require a finding of intent to kill. The error required reversal for it could not be determined beyond a reasonable doubt that the erroneous implied malice murder instructions did not contribute to the convictions on the conspiracy counts.id: 9579
Conspiracy to commit murder instructions were erroneous where jurors were not told defendant needed to intend to kill the officers and without defining deliberate and premeditated.Defendant was convicted of conspiracy to commit murder. The trial court instructed on the mental state necessary for a conspiracy. However, the instructions setting forth the elements of murder were not given with the conspiracy instructions but were given with the instructions on the two attempted murders for which defendant was acquitted. The only instructions given which defined malice aforethought and premeditation and deliberation were expressly limited to the charged attempted murders. The instructions were erroneous because the jury was asked to decide that defendant conspired to commit deliberate and premeditated murder without being told that defendant needed to have intended to kill the officers and without being given the definition of deliberate and premeditated. The error required reversal of the conspiracy to commit first degree murder conviction.id: 9568
The trial court prejudicially erred by instructing that evading an officer causing death under section 2800.2 supported a second degree felony-murder conviction. In People v. Howard (2005) 34 Cal.4th 1129, the court found that Vehicle Code section 2800.2 (evading police with willful disregard for the safety of others) was not an inherently dangerous felony, and therefore could not support a conviction for second degree felony-murder. Defendants were convicted of second degree murder under this theory. Following a recall of the remittutur, the convictions were reversed due to the trial court's failure to instruct on the implied malice theory of murder and the incorrect instructions given on the legally incorrect theory of felony-murder. The court determined the error could not be harmless under the Chapman standard since it was clear that the erroneous instructions contributed to the
verdict.id: 19079
The trial court erred by refusing imperfect self-defense instructions after finding defendant did not fear imminent peril.Defendant was convicted of second degree murder. The trial court prejudicially erred by refusing to instruct on imperfect self-defense. The court initially erred by finding defendant did not believe he was in imminent peril from the victim's attack. It was for the jury to determine defendant's state of mind. The court's ruling was also flawed by its finding that defendant set in motion the chain of events that resulted in the killing. A defendant may assert imperfect self-defense in that situation if the victim is the first to use unlawful force.id: 18929
The trial court erred by failing to instruct on Penal Code section 195 regarding excusable homicide committed during an accident in the course of a lawful act such as brandishing a weapon in self-defense.Defendant testified that he drew a weapon in self-defense, but fired accidentally. Under these circumstances the shooting is not considered self-defense. However, the trial court should have been instructed on Penal Code section 195 which provides that a homicide is excusable when committed by accident and misfortune in the course of doing a lawful act by lawful means, without any unlawful intent; and that brandishing a weapon in self-defense is a lawful act.id: 20715
The trial court prejudicially erred in failing to instruct on second degree murder and voluntary manslaughter as lesser included offenses of first degree murder where the original information did not allege felony murder.The trial court refused to instruct the jury on second degree murder and voluntary manslaughter because those crimes are
not lesser included offenses of felony murder. However, felony murder was not the crime charged in the accusatory pleading. The prosecutor's oral amendment to the information following the close of evidence should not be permitted to alter the expectations created by the original information. This is especially true where the court referred to the felony murder as an "added charge."id: 19154
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 trial court erred in instructing on second degree felony murder because the felony of negligently discharging a firearm merged with the resulting homicide.Defendant discharged the firearm once, intending to shoot the motor vehicle's occupants, rival gang members, and not intending to merely frighten them. However, the bullet struck and killed
an unintended victim, the driver of another car. Under the merger doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522, the trial court erroneously instructed the jury that the defendant could be guilty of second degree felony murder based on the underlying or "predicate" felony of discharging a firearm at an occupied motor vehicle. The error required reversal where the prosecution did not show that no juror relied on the improper theory in finding defendant guilty of second degree murder.id: 19555
The court erred in instructing on the felony murder doctrine based on the underlying crime of shooting at an occupied vehicle.Second degree felony murder, the only express theory of second degree murder offered to the jury was based on the underlying felony of shooting into an occupied vehicle. The People v. Ireland merger doctrine prevents using an assaultive-type crime as the basis for felony murder unless the underlying crime is committed with an intent collateral to committing an injury that would cause death. Without the evidence of defendant's involuntary statements about the shooting, there was no evidence from which a collateral intent or purpose could be found. It was therefore error to instruct on second degree felony murder and the murder conviction was reversed.id: 19855
The court erred by instructing the jury that mere words cannot establish a defense to battery as the question of provocation is a matter for the jury to decide.The trial court erred in instructing under CALCRIM 917 that mere words cannot establish a defense to battery, and in permitting the prosecutor to argue to the jury, over objection, that words cannot legally constitute provocation to reduce a homicide to manslaughter.id: 20022
The concurrence of act and intent instruction was erroneous where it added a requirement of intent to kill to implied malice second degree murder.The trial court gave an incorrect instruction on the principle of concurrence of act and intent because it suggested that implied malice second degree murder required an intent to kill. However, the error was harmless since the instructions on first degree premeditated murder required more: an intent to kill formed after premeditation and a weighing of considerations for and against killing. Nothing in the implied malice murder instructions, even with the intent to kill requirement,
required anything close to that heightened state of mind.id: 19224
The trial court erred in failing to instruct on second degree murder with express malice.The trial court erred in failing to instruct the jury on the definition of second degree murder committed with express malice. The jury could have concluded the emotional,
impulsive nature of the killing precluded a finding of premeditation but that defendant intended to kill. However, the error was harmless where it was unlikely that the jury would have made such a finding.id: 19223
Failure to instruct that conspiracy to commit murder required defendant's intent to kill required reversal.The jury essentially asked whether all four participants must have harbored express malice in order to find defendant guilty of conspiracy to commit murder. The revised instruction stated that "at least two" of the participants must have intended to kill. However, it did not specifically require that defendant needed to be one of the participants with the intent to kill. Since the jury was aware there were four participants, the instruction erroneously allowed the jury to find defendant guilty of conspiracy to commit murder without regard to his intent to kill so long as they found that two other participants harbored the intent. The conviction for conspiracy to commit murder was reversed.id: 17674
Failure to instruct on implied malice second degree murder was harmless where evidence of intent to kill was overwhelming.The trial court erred by instructing on second degree murder by describing only intentional but unpremeditated second degree murder since there was evidence from which the jury could have inferred defendant acted without the intent to kill even though his conduct posed a high risk of death. However, the omission of implied malice theory of second degree murder was harmless where the evidence was overwhelming, and, under properly given instructions, the jury found that the killings were intentional, premeditated and deliberate.id: 15436
Violating the maximum speed law is not an inherently dangerous act for purposes of vehicular manslaughter.Defendant was convicted of gross vehicular manslaughter pursuant to Penal Code section 192, subdivision (c)(l). However, the trial court erred in instructing with CALJIC 8.97 that violation of the maximum speed law is the commission of an act inherently dangerous to human life. Viewed in the abstract, violation of the maximum speed law is not an inherently dangerous act. The error required reversal of the conviction.id: 10262
Court erred in instructing to use possession of a bomb both to find appellant committed second degree murder and then to convert that murder into first degree murder.The trial court erred in instructing the jury that they could use the crime of possession of a destructive device twice, first to find appellant had committed second degree murder, and then to convert that murder into murder of the first degree. The instructions added a felony to the first degree murder rule: possession of a destructive device. Although the reckless possession of a bomb may become second degree murder, it does not, thereby automatically become first degree murder. The first degree murder convictions were reversed.id: 10208
Court erroneously removed factual issue from jury's consideration by instructing on the existence of a continuous transaction for purposes of felony-murder.In response to a question from deliberating jurors, the court stated that if the jury found defendant entered the house with the intent to steal, the homicide and burglary were part of one continuous transaction. However, it is for the jury to decide whether the existence of a single transaction, and hence a murder in the perpetration of a felony, was proven beyond a reasonable doubt. The court's instruction effectively removed that factual issue from the jury's consideration. However, the error was harmless where it was clear the erroneous answer did not contribute to the conviction.id: 15432
Standard instruction in cases where the killer of a felony accomplice is someone other than the coperpetrator of the crime was deficient for failing to address the proximate cause question.Defendant was charged with the first degree murder of his accomplice in an attempted robbery where a victim actually shot the accomplice. CALJIC 8.12 is the standard instruction in provocative act doctrine prosecutions where the decedent is killed during the perpetration of a felony and the killer is someone other than the decedent's accomplice. The instruction is deficient in three respects: It fails to define provocative act in plain English as conduct highly likely to result in death, to advise jurors to disregard any provocative act by decedent in assessing defendant's criminal culpability, and to adequately explain that the provocative act of defendant or a surviving co-felon must be a substantial factor in the killing. The error was harmless where the jury was told defendant's guilt depended on his own commission of provocative acts that proximately resulted in the accomplice's killing.id: 10249
Manslaughter instruction referring to a homicidal reaction was legally incorrect and required reversal of murder conviction.Over defendant's objection, the trial court delivered a special instruction requested by the prosecution suggesting that murder could be reduced to manslaughter only where the provocation would trigger a homicidal reaction in the mind of a reasonable person under similar circumstances. However, the jury was also instructed that homicide includes murder. The instruction therefore suggested a homicidal reaction could constitute murder or manslaughter, and could preclude a finding of manslaughter. There is no way to determine whether the jury based its second degree murder conviction on the legally correct or legally incorrect instruction. The error required reversal of the conviction where the question of murder or manslaughter was close.id: 10242
The trial court prejudicially erred by giving conflicting instructions on the required state of mind for attempted murder.Defendant was convicted of attempted murder. However, the trial court gave conflicting instructions on the required state of mind for attempted murder. It first gave CALJIC 8.66 which expressed that attempted murder requires the specific intent to kill. It then gave CALJIC 8.11 which reintroduced the concept of implied malice and informed the jurors that either express or implied malice would establish malice aforethought. The error was prejudicial under the Chapman standard where the prosecutor argued that implied malice was sufficient to sustain a conviction, and the jury expressed confusion about the necessary intent.id: 18346
Trial court cannot modify the standard voluntary manslaughter instruction because the Supreme Court has determined intent to kill is an element of that offense.Defendant argued the trial court erred in failing to modify, sua sponte, the standard form instruction defining the intent required for voluntary manslaughter. He claimed that because CALJIC 8.40 included specific intent to kill as a necessary element of voluntary manslaughter, the instruction precluded the jury from considering whether defendant acted upon sudden quarrel or in heat of passion if the jury believed only that he acted in conscious disregard for life but not with intent to kill. Therefore, if the jury found an unintentional killing with adequate provocation to negate malice, the instructions gave no choice but to convict of second degree murder. The court appreciated defendant's question of how voluntary manslaughter, a less serious crime, could require an intent to kill when second degree murder required no such intent. Nonetheless, the court was bound by the Supreme Court's determination that intent to kill is an element of voluntary manslaughter.id: 10255
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
The trial court prejudicially erred in refusing to instruct on imperfect self-defense given the evidence that an unidentified person shot at defendant.Defendant was convicted of murder and attempted murder following a dispute at a party. Given the testimony that someone shot at defendant first, together with the undisputed evidence that two guns were used and a bullet from one gun (that may have been fired by someone other than the victims) struck a jacket defendant may have been wearing at the time of the shooting, the evidence supported instructions on self-defense as well as imperfect self-dense. The trial court prejudicially erred in refusing to instruct on imperfect self-defense. Moreover, the invited error doctrine did not apply even though defense counsel did not argue vigorously for the imperfect self-defense instruction.id: 16573
Error in failing to instruct on misdemeanor-manslaughter theory of involuntary manslaughter was harmless where other instructions permitted conviction of that offense.The evidence was sufficient to support a conviction of second degree murder. The verdict established that, in convicting defendant of voluntary manslaughter under the instructions it was given, the jury necessarily found all of the facts necessary to establish second degree murder even if the jury believed that malice was negated by heat of passion or intoxication. Although the trial court erred in failing to instruct on the misdemeanor manslaughter form of involuntary manslaughter, that error could not have prejudiced defendant because the involuntary manslaughter instructions that were given permitted conviction of that offense if the jury found only an unlawful, unintentional killing without malice. If there was error in instructing on voluntary manslaughter, the error favored defendant and he may not complaint on appeal about errors favoring him.id: 15435
Court erred in instructing seat belt violation could serve as predicate unlawful act for GVMI where there was no evidence the violation caused the death.Defendant argued the trial court erred in instructing that defendant's failure to wear a seat belt in violation of Vehicle Code section 27315 could serve as an unlawful act for purposes of gross vehicular manslaughter while intoxicated. She claimed the seat belt violation cannot cause an accident. However, there is no requirement that the unlawful act cause the accident. The unlawful act need only be a cause of another person's death. The instruction was erroneous since there was no evidence that defendant's failure to wear a seat belt caused the victim's death. The error was harmless where the record did not indicate the jury's verdict rested solely, if at all, on this theory.id: 15430
Failure to instruct that intent to kill is not an element of voluntary manslaughter was harmless where the evidence of intent of kill was strong and the parties did not argue voluntary manslaughter.In People v. Lasko (2000) 23 Cal.4th 101, the California Supreme Court held that intent to kill is not an element of voluntary manslaughter. At defendant's murder trial, the jury was instructed on the lesser included offense of voluntary manslaughter. The instruction contained the then-standard language that voluntary manslaughter required an intent to kill. Relying upon Lasko, defendant argued the use of the instruction constituted reversible error. The court found Lasko applied to defendant's case since the decision did not constitute a new rule of law. However, the error was harmless where the jury was otherwise instructed with CALJIC 8.50 which distinguishes murder and manslaughter, neither party at trial argued the theory of voluntary manslaughter, and there was strong evidence of intent to kill.id: 16498
Defense counsel's failure to object to the prosecutor's misstatements regarding murder and manslaughter did not constitute ineffective assistance since the victim's calling
defendant a "faggot" was not sufficiently provocative to require a manslaughter instruction.The prosecutor committed misconduct by misstating the law on
murder and voluntary manslaughter. The misstatements included a claim that voluntary manslaughter was a "legal fiction" and sudden quarrel or heat of passion could form the basis for
second degree murder. Since defense counsel did not object to the improper comments, defendant forfeited any claim of prosecutorial misconduct. Defense counsel was not ineffective
in failing to object because the evidence did not support a manslaughter instruction as the victim's calling defendant a "jota" or "faggot" was insufficient to cause an average person to lose reason and judgment.id: 18987
Voluntary intoxication may negate the malice aforethought required for murder in drunk driving cases.Defendant was driving under the influence of alcohol when his car crossed the center divider of a highway and collided head-on with another vehicle killing the driver. Defendant was convicted of second degree murder. The trial court erred in failing to instruct the jury that defendant's intoxication may have rendered him incapable of harboring the malice aforethought required for murder.id: 10263
Trial court prejudicially erred in failing to give involuntary manslaughter instructions given the evidence of intoxication and drug use.Evidence of appellant's behavior and his history of drug use and ingestion of an excessive amount of methamphetamine on the night of the shooting presented a factual question for the jury regarding whether appellant was able to actually form the intent to kill. The trial court erred in not giving a proper involuntary manslaughter instruction.id: 10260
Court erred in refusing to instruct on involuntary manslaughter where defendant repeatedly testified he did not intend to kill.Defendant was convicted of voluntary manslaughter and argued the court erred in refusing to instruct on involuntary manslaughter. Defendant repeatedly testified he did not intend to kill the victim. His testimony as to how the stabbing occurred was contradictory. Under the first version the killing could be viewed as accidental or involuntary manslaughter based on criminal negligence. Under the second version, the killing could be viewed as imperfect self-defense. However, the fact that he testified to different versions of how the stabbing occurred did not undercut his request for an involuntary manslaughter instruction, but at most raised a credibility question to be resolved by a jury. The error was prejudicial given the evidence and a note from the jury suggesting it wanted to consider involuntary manslaughter.id: 10209
Instructional error on viability of the fetus was harmless where evidence established defendant's fetus was viable under any test.The trial court instructed that defendant could not be convicted of the murder of his unborn fetus unless the fetus was viable. Defendant argued the instruction, as given, improperly implied that a fetus is viable if it is capable of being born alive, even if it could not have survived for a sustained period outside the mother's womb. Any error was harmless where the uncontradicted testimony showed that the Hamilton fetus had attained viability by any accepted test, including the likelihood of sustained life outside the womb.id: 10233
Defendant's statement that he had no memory of the shooting supported the instruction on involuntary manslaughter.Defendant argued the court erred in instructing on involuntary manslaughter. Both the prosecution and defense requested the instruction. Further, there was evidence to warrant giving the instruction sua sponte namely defendant's testimony that he had no memory of the shooting and the doctor's testimony on the effects of PCP on the chronic user.id: 10220
Incomplete torture murder instructions were harmless where evidence showed the torture was inflicted for a sadistic purpose.Instructions on first degree murder based on the infliction of torture were incomplete because they omitted the purpose of the torture. However, the error was harmless where it was undisputed that whatever torture was inflicted was done for a sadistic purpose.id: 16423
Defendant who had been drinking was not entitled to an instruction sua sponte on intoxication and specific intent where the evidence did not show his drinking affected his mental state.Defendant argued the trial court erred in failing to instruct sua sponte, pursuant to CALJIC 4.21, that if the jury found that defendant was intoxicated at the time of the offense, it could consider such voluntary intoxication in determining whether defendant had the specific intent or mental state required for rape-felony-murder or for premeditated and deliberate first degree murder. However, because there was no evidence presented that defendant's drinking affected his mental state in a manner that might negate his specific intent, the court did not err in failing to deliver the instruction.id: 10219
Any error in instructing on transferred intent where both victims were killed was harmless.At defendant's request the trial court instructed the jury on the doctrine of transferred intent. Defendant, on appeal, argued the instruction was unnecessary and improper because both victims in the case were killed. Assuming that the instruction on transferred intent was neither factually nor legally relevant, it was inconceivable that the jury might have been misled to transfer its findings that defendant premeditated and deliberated the intentional killing of the other.id: 10185
Court erred in failing to instruct that legally adequate provocation could occur over a considerable period of time.The trial court erred in refusing to instruct the jury, at defendant's request, that legally adequate provocation could occur over a considerable period of time. The defense theory at trial was that he killed after enduring provocatory conduct by the victim over a period of weeks. The requested pinpoint instruction on defendant's theory of the case was neither argumentative nor duplicated in the standard instructions. However, the error did not require reversal where the jury was given otherwise comprehensive instructions on provocation and heat of passion and nothing in those instructions precluded the jury from finding adequate provocation resulting from conduct occurring over a considerable period of time.id: 10206
Court should instruct on intoxication, if relevant, in a torture-murder case.A court should instruct a jury in a torture-murder case, when evidence of intoxication warrants it, that intoxication is relevant to the requisite specific intent to inflict cruel suffering. However, evidence that defendant consumed several beers and a couple of shots of liquor over a six hour period did not support the giving of the instruction.id: 10215
Supreme Court finds that instructions permitting jury to presume malice were not harmless error.Defendant was charged with accomplice murder after his confederate killed a victim during a robbery. The judge erroneously instructed the jury that malice is implied or presumed from either the willful, deliberate and intentional doing of an unlawful act or from the use of a deadly weapon. Despite the erroneous instructions, the state Supreme Court affirmed the defendant's murder conviction, finding the error was harmless. In an opinion written by Justice Souter, the Supreme Court reversed. Under <i>Chapman v. California</i>, 386 U.S. 18 (1967), it was not sufficient that the jury considered evidence from which it could have reached the verdict without relying on the erroneous presumption. The issue is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt independently of the presumption. After reviewing the entire record, the Supreme Court held that the circumstances of the victim's death did not indicate the confederate's malice in killing her so convincingly that it can be said beyond a reasonable doubt that the jurors rested a finding of his malice on that evidence exclusive of the presumptions.id: 10250
Court may not instruct that as a matter of law homicide is always a foreseeable consequence of a gang attack.The trial court erred in instructing the jury that homicide is a natural and reasonable consequence of a gang attack. While the evidence supported such a conclusion in the instant case, it also supported a conclusion to the contrary and therefore the error required reversal of the conviction.id: 10212
Court prejudicially erred in giving an instruction which implied that voluntary intoxication has no bearing on the offense of murder in the second degree with implied malice.Defendant was convicted of second degree murder. However, the trial court erred in giving CALJIC 4.20 because it implied the jury should disregard the evidence of voluntary intoxication for purposes of determining whether the defendant acted with actual knowledge of life endangerment and conscious disregard for life. The error was not cured by a separate conflicting instruction. The fact that voluntary intoxication was not the primary defense did not reduce the harm since intoxication could be material to self-defense and heat of passion. The error was prejudicial where the facts presented serious and genuine questions whether defendant's offense was murder or manslaughter.id: 10213
Instructions erroneously could have permitted a conviction of assault with intent to commit murder when only implied malice was shown.The trial court instructed the jury defendant was not guilty of assault with intent to commit murder unless he had the specific intent to murder the victim. Previous instructions defined murder as requiring express or implied malice. The instructions were erroneous because they could have permitted the jury to convict defendant of assault with intent to commit murder when only implied malice was shown. However, such an interpretation of the instructions was not obvious and closing arguments by counsel stressed the need to find intent to kill. Moreover, there was no evidence that defendant shot at the officers with any intent other than the intent to kill and avoid capture. The error was therefore harmless.id: 9702
Updated 3/6/2024The trial court erred by instructing on the “kill zone” theory where the case was not tried on that theory, and there was no evidence of intent to kill everyone in the kill zone. Defendant was convicted of two counts of murder and five counts of attempted murder. The trial court erred by instructing on the kill zone theory in relation to the attempted murder counts because the case was not tried as a kill zone case. Moreover, there was no attempt to kill everyone in the “zone,” the restaurant. Defendant fired 10 shots but there were more than 10 people present. While there was sufficient evidence to support the attempted murder convictions on an alternative theory, the error was prejudicial since it could not be determined whether the jury convicted him under the correct or incorrect theory.id: 26835
Updated 3/4/2024Provocation to reduce first degree murder to second degree must come from the victim and not a third party.The trial court did not err by instructing that in order for provocation to reduce first degree murder to second degree, it must come from the victim and not a third party. Any error in instructing otherwise was harmless where the evidence overwhelmingly established the murder was deliberate premeditated and willful.id: 28144
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 2/26/2024Heat of passion was not established by the combined effect of the altercation at defendant’s mobile home and the theft of his truck.Defendant argued the trial court erred by failing to instruct on voluntary manslaughter based on heat of passion. He claimed the combined impact of the two events established the provocation. However, the altercation at the mobile home occurred four days earlier and gave defendant time to cool off. The other incident, attempted theft of defendant’s truck, was insufficient as theft alone has never been found to support provocation. This was not a situation where the whole could add up to more than the sum of the parts. id: 26234
Updated 2/26/2024Defendant forfeited the issue regarding the failure to give the Mayberry instruction at the trial for rape murder by failing to request the instruction at trial.Defendant argued the trial court erred by failing to instruct on the unreasonable belief that the victim consented to intercourse in a case involving the rape murder and rape murder special circumstance. However, defendant forfeited the issue by failing to request the instruction at trial. Any error in failing to so instruct was harmless given the compelling evidence that defendant strangled the victim to death during an act of rape.id: 26260
Updated 2/26/2024Defendant was not entitled to an instruction on a mistake of fact as to the victim’s age where he would have committed crimes even if the victim was older than 18.Defendant was convicted of child endangerment among other things. He argued trial counsel provided ineffective assistance by not requesting a mistake of fact instruction regarding his allegedly mistaken belief of the victim’s age. However, the mistake of fact defense was not available to defendant who still would have committed criminal offenses if the victim had been 18 years of age or older.id: 26498
Updated 2/26/2024The trial court did not err by modifying the standard murder instruction by including language in section 189 (d) as it relates to deliberation and premeditation.CALCRIM No. 521 defines first degree murder. The trial court did not err by modifying the instruction by incorporating verbatim language of Penal Code section 189 (d) which states that to prove the killing was premeditated and deliberate, it is not necessary to prove the defendant meaningfully reflected upon the gravity of the defendant’s act.id: 27215
Updated 2/24/2024The failure to instruct on heat of passion despite evidence supporting it, was harmless in light of the finding that the killing was deliberate and premeditated.After finding sufficient evidence of heat of passion, the trial court erred by failing to instruct with CALJIC 8.42. However, the omission was not structural error requiring automatic reversal, and was subject to a harmless error analysis. The error was harmless where the jury found defendant premeditated and deliberated the killing.id: 26711
Updated 2/23/2024Provocative act murder instruction properly informed jurors they could not convict defendant if the provocative act was committed by the victim.Defendant was convicted of murder under the provocative act theory. The jury was properly instructed that it could not convict defendant under that theory if the only provocative act was committed by the decedent. Moreover, the instruction did not permit the jury to convict him based solely on his participation in the robbery.id: 26786
Updated 2/4/2024Aiding and abetting implied malice murder is a valid theory.Defendant argued that one cannot be convicted as a direct aider and abettor to implied malice murder because direct aiding and abetting turns on the intent of the aider and abettor, and implied malice murder is based on an unintended result of a dangerous act. However, the theory is proper and an aider and abettor to implied malice second degree murder need not have an intent to kill. The instructions given did not properly fit this theory but the error was harmless where a rational jury would have found defendant guilty of the offense absent the instructional error. id: 27308
Updated 2/4/2024Instructing that accident is a defense to premeditated murder might have confused the jury when considering felony murder. The trial court did not err in failing to instruct the jury that accident is a defense to premeditated murder. The instruction may have been confusing on the question of felony murder.
id: 27324
Updated 2/4/2024The trial court did not err in failing to instruct with second degree unpremeditated murder when there was no evidence to support it and the prosecution argued felony- murder.Although defendant was charged with four counts of murder with malice aforethought the prosecutor exclusively pursued a felony-murder theory. Defendant argued the court erred in failing to instruct on unpremeditated murder as a lesser included offense, but the court did not err in failing to give the instruction where there was no evidence to support it. id: 27284
Updated 2/2/2024Combination of standard instructions did not mislead the jurors into believing provocation could reduce murder to second degree only if it satisfied an objective person standard.Defendant argued that a combination of certain standard jury instructions (CALCRIM Nos. 521, 522 and 570) might have misled the jurors to believe that provocation could negate the elements of first degree murder only if it satisfied an objective, “person of average disposition” standard. However, the instructions were legally correct and their confluence did not mislead the jurors in the manner he asserted.id: 27889
Updated 1/31/2024The erroneous failure to instruct on imperfect self-defense is reviewed for prejudice under the Chapman standard.When the record contains substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory amounts to constitutional error and is thus subject to review under the federal standard described in Chapman v. California (1967) 386 U.S. 18, 24.id: 28058
The trial court did not err by refusing to instruct regarding the effect of the victim’s prior violent conduct on the issue of reasonableness of defendant’s belief in self-defense where defendant was unaware of the prior conduct.The trial court did not err by refusing to instruct the jury regarding the effect of the victim’s past harmful or threatening conduct on the reasonableness of defendant’s belief in the need for self-defense where there was no evidence that defendant was aware of the victim’s prior conduct. id: 26177
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
Gross vehicular manslaughter while intoxicated was not a lesser included offense of Watson murder under the accusatory pleading test.Defendant argued the trial court erred by failing to instruct the jurors on gross vehicular manslaughter while intoxicated as a lesser included offense of implied malice murder under the accusatory pleading test. However, based on the amended information, which incorporated the statutory definition of the charged murder without referring to any particular facts, gross vehicular manslaughter while intoxicated is a lesser included offense of “Watson murder.”id: 26087
Trial court instructing on vehicular manslaughter with gross negligence was not required to instruct on the elements of any predicate Vehicle Code violations. Defendant was convicted of vehicular manslaughter with gross negligence. Contrary to defendant’s argument, the trial court did not err by failing to instruct that the offense requires proof of a predicate “otherwise lawful act” other than driving that is performed with gross negligence. id: 25839
There was no Chiu error where the jurors were required to find that each defendant acted with the deliberation and premeditation required for murder.Defendant argued the trial court’s instruction on the natural and probable consequences theory of first degree murder violated the court’s holding in People v. Chiu (2014) 59 Cal.4th 155. However, unlike in Chiu, the jury was required to find that each defendant committed the crimes with the required deliberation and premeditation before it could find that defendant guilty of first degree murder.id: 25816
The trial court had no duty to instruct on assault with a firearm as a lesser included offense of murder.Defendant argued the court had a sua sponte duty to instruct on conspiracy to commit assault with a firearm as a lesser included offense of murder based on the uncharged conspiracy instructions given the jury. However, defendants were not charged with conspiracy to commit murder, much less with a conspiracy to commit murder by use of a firearm. And there was no substantial evidence in the record to support a finding that the defendants were guilty of assault with a firearm but not murder.id: 25817
The court’s failure to instruct on murder with malice aforethought (instructing instead only on felony murder) was harmless where the jury also found the felony murder special circumstance to be true.Defendant was charged with murder with malice aforethought. The trial court instructed only on first degree felony murder without instructing on murder with malice aforethought or lesser included offenses (or defenses) to that offense. However, the failure to instruct the jury on murder with malice aforethought was harmless where the jury also found true the felony murder special circumstance allegation.id: 25690
Kill zone theory instruction properly informed jurors that defendant could only be convicted of the attempted murder of James if he intended to kill James.Defendant was convicted of attempted murder, and argued the trial court improperly instructed on the “kill zone” theory of liability. The theory applied where the defendant fired shots into a vehicle intending to kill one victim, Bui, and exposed the others in the victim’s car, including James, to mortal danger. While the wording of the instruction given was imperfect, the instruction conveyed defendant could only have been convicted of the attempted murder of James under this theory if he intended to kill James.id: 25523
The trial court in a murder retrial may not instruct the jury that the first trial resulted in a gross vehicular manslaughter conviction.During a retrial of a second degree murder charge, after a previous jury failed to reach a verdict on that charge but convicted the defendant of gross vehicular manslaughter while intoxicated, the new jury should not be informed of the specific convictions that resulted from the first jury’s deliberations. The trial court may, upon request, give an instruction that would prevent the jury from wrongly assuming that an acquittal on the murder charge would result in the defendant escaping criminal liability altogether.id: 25473
The failure to instruct on vehicular manslaughter while intoxicated as a lesser included offense of gross vehicular manslaughter while intoxicated was a product of invited error. The trial court did not err by failing to instruct on vehicular manslaughter while intoxicated (Penal Code section 191.5, subd.(b)) as a lesser included offense of gross vehicular manslaughter while intoxicated (section 191.5, subd. (a)) where the defense made a deliberate tactical choice to forego the instruction. Moreover, there was no substantial evidence showing defendant may have committed the lesser but not the greater offense. Finally, any error was harmless where defense counsel conceded defendant was guilty of gross vehicular manslaughter while intoxicated. id: 24935
There was evidence of intent to kill to support the “kill zone” theory of attempted murder even though jurors convicted defendant of second degree murder based on implied malice.Defendant argued there was insufficient evidence to support the instruction on attempted murder under the “kill zone” theory. However, there was substantial evidence to show defendant intended to kill three people in the group even though the jurors convicted him of second degree murder under an “implied malice” theory.id: 24637
The failure to instruct on manslaughter as a lesser included offense of implied malice murder did not violate equal protection.Defendant was convicted of implied malice murder (Watson murder) by killing a pedestrian while drunk driving. The evidence supported the conviction given her inability to keep the car in her own lane. She argued the failure to allow manslaughter instructions as lesser included offenses violated her right to equal protection. However, the fact that implied malice murder defendants do not have access to manslaughter as a lesser included offense doesn’t violate equal protection because there is no disparate treatment for similarly situated persons, and there is a rational basis for the statutory charging scheme.id: 25528
Precluding voluntary intoxication as a defense to implied malice murder does not violate due process.Defendant was convicted of implied malice murder after killing a pedestrian in a drunk driving incident. Instructing the jury that voluntary intoxication is not a defense to implied malice murder did not violate defendant’s right to due process.id: 25529
The trial court did not err by refusing to instruct on the law regarding civil negligence.Defendant was charged with gross vehicular manslaughter while intoxicated. The trial court did not err by refusing to instruct the jury with the civil pattern instruction on the law of causation.id: 25230
The trial court did not err by failing to instruct sua sponte on voluntary manslaughter where the evidence did not show defendant could have been convicted of manslaughter but not murder.Defendant was convicted of first degree murder. He argued the trial court erred by failing to instruct sua sponte on voluntary manslaughter based on heat of passion and imperfect self-defense. However, defendant confessed to an intentional killing, and under no view of the evidence could the jury have found he was guilty of voluntary manslaughter but not murder. id: 25167
Any error by instructing that voluntary manslaughter is a general intent crime was harmless where the collective instructions properly described the mental state for the offense. Defendant argued the trial court erred by instructing that voluntary manslaughter required only a general criminal intent. However, the jury was otherwise properly instructed on the mental state for voluntary manslaughter. Moreover, the jury was told it could not convict defendant of first degree murder without finding that he had an express intent to kill and that at the time of the killing he was not acting under a sudden quarrel or heat of passion.id: 25086
The trial court did not err by failing to modify the instruction on hallucinations by adding the delusions in considering whether the defendant acted with premeditation and deliberation.Defendant was convicted of first degree murder with a multiple murder special circumstance finding. Defendant relied on the fact that she suffered from delusions to show that she did not premeditate the killing. She argued that CALCRIM No. 627, which addresses hallucinations, should have been modified to include delusions. However, there was no reasonable possibility that the jury interpreted the instruction to preclude it from considering defendant’s delusions.id: 24998
The trial court did not err at the guilt phase by failing to instruct on involuntary manslaughter as a lesser included offense of murder given evidence suggesting defendant thought he was stabbing a demon.Defendant argued the trial court erred by failing to instruct on involuntary manslaughter as a lesser included offense of murder. However, there was no substantial evidence in the record suggesting defendant didn’t form the intent to kill when he stabbed his mother 10 times with the kitchen knife. While evidence suggested he may have believed at the time that she was a demon, whether the delusion existed and if so, whether it exonerated defendant for killing with express malice the person believed to be a demon, was properly reserved for the sanity phase of the trial.id: 24672
The trial court did not err by allowing lay witnesses (teachers) to testify that based on their observations, defendant’s learning problems were not caused by an intellectual disability.Defense experts testified that defendant had an intellectual disability. The trial court did not err by allowing three lay witnesses - two former teachers and a counselor to testify as to their observations of defendant in school, and conclude that his learning difficulties did not stem from an intellectual disability.id: 24681
The trial court did not err by failing to instruct on voluntary manslaughter where the shooting that may have served as provocation took place two weeks earlier.The trial court did not err by failing to instruct on voluntary manslaughter based on provocation as a lesser included offense of murder. Two weeks had elapsed between the earlier shooting and the charged murder and that was enough time for the passion to subside. Moreover, the defendant’s drinking did not support a provocation claim since the test of provocation is whether an average and sober person in defendant’s situation would lose reason and judgment.id: 24647
The trial court properly refused to instruct on imperfect self-defense where defendant was the initial aggressor and the victim’s actions in running for a gun were legally justified.The trial court did not err in failing to instruct on imperfect self-defense based on the fact that the victim was shot while running for a gun because defendant was the initial aggressor and the victim’s response was legally justified.id: 24648
Involuntary manslaughter instructions were not required based on defendant’s drinking absent evidence that he was unconscious or unaware of his actions. The trial court did not err by failing to instruct on involuntary manslaughter where the record showed defendant had been drinking but there was no evidence that he was unconscious or unaware of his actions.id: 24649
The trial court did not prejudicially err by failing to instruct on malice murder and lesser included offenses where that theory was charged but the prosecution proceeded on a felony murder theory. Defendant argued the trial court erred in failing to instruct on malice murder and the lesser included offenses where the prosecution chose not to amend the information to allege solely felony murder. Any error was harmless where it wasn’t reasonably probable the defendants would have received a better result had the jury been instructed on malice murder, the lesser included offenses and the defenses of accident and self defense.id: 24618
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 trial court did not err by refusing to instruct on imperfect self-defense where the only relevant evidence would have shown defendant’s fear to be reasonable. The trial court did not err by refusing to instruct on imperfect self-defense where the evidence that defendant shot an armed gang member suggested only that defendant’s fear was reasonable. In rejecting self-defense, the jury must have concluded that defendant did not act only because of his fear.id: 24239
The failure to instruct on heat of passion was harmless because the jury found the murder was willful, deliberate and premeditated.Defendant argued the trial court erred by failing to instruct the jury on voluntary manslaughter based on a sudden quarrel or heat of passion. However, any error was harmless because the jury necessarily rejected the possibility that defendant acted in the heat of passion by convicting him of first degree murder. id: 24088
The trial court was not required to instruct on justifiable homicide in making an arrest absent evidence that defendant was attempting to make an arrest. The trial court did not err by failing to instruct on justifiable homicide in making an arrest because there was no evidence that defendant was attempting to arrest Valdez for burglary, and that theory was inconsistent with the defense presented that the crime was voluntary manslaughter rather than murder.id: 23975
It is for the jury to determine whether defendant created a kill zone for purposes of the attempted murder instruction. Defendants were convicted of attempted murder on a kill zone theory where an intent to kill one person in a group establishes an intent to kill everyone in the group. Contrary to defendant’s claim, the existence of a kill zone does not require a defined area that can be saturated with lethal force. It was for the jury to decide whether defendant created a kill zone when he fired and whether the victim was in it. Finally, the instructions given did not allow the jury to infer the intent to kill based merely on the victim’s presence in a zone of non-lethal harm.id: 23799
Defendant was not entitled to voluntary manslaughter instructions where the jury could not have found he reasonably believed the victim standing in the ditch provoked him.Defendant came home to find his house burglarized, saw Valdez standing next to a car that was stuck in the ditch and killed him with multiple axe blows. Because a jury could not believe defendant reasonably believed the victim provoked him, he was not entitled to a voluntary manslaughter instruction. id: 23977
When instructing on attempted murder under a “kill zone” theory, it is for the jurors to determine whether defendant created a kill zone when he fired and whether the victims were in it.Defendants fired into a crowd intending to kill Pride. They were convicted of two counts of attempted murder of two others in the group under the “kill zone” theory. Contrary to defendants’ claims a kill zone does not require a specified defined area and it was for the jury to determine whether defendant created a kill zone when he fired and whether Bolden was in it. id: 23524
The trial court did not err in failing to instruct on the shooting from a motor vehicle charge.Defendant argued the trial court erred in refusing to instruct on imperfect self-defense as a defense to the charge of shooting from a vehicle pursuant to Penal Code section 26100. However, the defense does not apply to the malicious discharge of a firearm from a motor vehicle. Because the jury was not asked to find defendant harbored "malice aforethought" in his shooting from a vehicle, the instruction would have been inappropriate.id: 23489
The instructions on provocation as a basis for second degree murder were not misleading.Defendant argued the instructions on the provocation doctrine were misleading because they did not explicitly inform the jury that the objective standard apples only to reduce murder to voluntary manslaughter and not apply to reduce first to second degree murder. The instructions accurately informed the jury that if defendant was in fact provoked, he did not commit first degree murder. If defendant wanted a more specific instruction he needed to ask for one. Moreover, defendant did not rely on provocation and the concept was hardly even mentioned at trial.id: 23484
The trial court had no sua sponte duty to instruct that an unlawful killing committed without malice in the course of an assaultive felony constitutes involuntary manslaughter. The trial court did not err by failing to instruct the jury sua sponte that an unlawful killing committed without malice in the course of an assaultive felony constitutes the crime of involuntary manslaughter. This was a novel theory and a court has no obligation to instruct on a principle that has been so “obfuscated by infrequent reference and inadequate elucidation” that it cannot be considered a general principle of law.id: 23458
The trial court erred by failing to instruct sua sponte that the prosecution has to prove beyond a reasonable doubt that the killing was not the result of heat of passion. The trial court erred by failing to instruct sua sponte at defendant’s trial for first degree premeditated murder that the prosecution was required to prove beyond a reasonable doubt that defendant did not act as a result of heat of passion. However, the error was harmless where the jury was otherwise properly instructed, and the jury’s finding that the killing was planned and deliberate was manifestly inconsistent with having acted as a result of heat of passion.id: 23657
Evidence did not support involuntary manslaughter where each defendant committed life-threatening conduct. Defendants were convicted of second degree murder following the vicious beating of a fellow prison inmate. The trial court did not err in refusing to instruct on the lesser included offense of involuntary manslaughter based on a noninherently dangerous felony as the record was devoid of evidence suggesting the defendants were criminally negligent, instead showing each defendant committed life-endangering conduct.id: 23713
The trial court erred by responding to a juror question in a way that sanctioned a murder verdict that was not unanimous as to degree.Defendant was prosecuted on two aiding and abetting theories - first degree murder during a kidnapping and second degree murder with target offenses of assault and kidnapping. The trial court erred by instructing in response to a jury question that the jury need not be unanimous as to the theory of guilt because the two theories presented led to different degrees of murder. Unanimity was required where the choices involved different degrees of murder. The court also erred by instructing as to second degree murder that the defendant, rather than the actual killer, needed to have acted with malice. The matter was remanded for retrial on first degree murder or entry of a second degree murder conviction.id: 23392
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
The prosecutor’s late request for aiding and abetting instructions did not deprive defendant of his right to counsel.Defendant argued the prosecution interfered with right to counsel by presenting an aiding and abetting theory so late in the trial because counsel had no ability to respond given the late notice. However, the defense presented several witnesses after learning about the prosecution’s intention to argue aiding and abetting, and there was sufficient time to prepare. And any error was harmless where the defense capitalized in closing argument on the prosecution’s midtrial shift in emphasis.id: 23143
The trial court did not err in failing to instruct on second degree implied malice murder in defendant’s case where he was prosecuted for first degree felony murder.Defendant was convicted of first degree felony murder. He argued the trial court erred by failing to instruct on second degree implied malice murder. He first argued the instruction was required because he was only charged under Penal Code section 187. However, he was given plenty of notice that the case was being prosecuted as a felony murder. Moreover, there was no evidence of implied malice and the jury necessarily found him guilty of first degree felony murder.id: 23006
Provocative act murder instruction requires that each person convicted must have had the requisite mental state for murder.Defendant argued that CALJIC 8.12, the instruction used to define provocative act murder, allowed the jurors to convict each defendant as long as it found a single accomplice acted with the requisite state of mind. However, other instructions reinforced the plain meaning of CALJIC 8.12 that each defendant must have individually acted willfully, deliberately and with premeditation before he could be convicted of first degree murder. Moreover, the “equally guilty” language of the aiding and abetting instruction, CALJIC 3.00, did not change the result.id: 23026
Any error in giving CALJIC 3.02 on natural and probable consequences, in a provocative act murder case, was harmless where the instruction makes clear it refers to a separate theory of murder. Defendants argued the trial court, by instructing with CALJIC 3.02, allowed the jury to convict them of first degree murder by finding they aided and abetted Lorenzo in his own death. However, CALJIC 3.02 described itself as a separate theory of murder, in addition to the provocative act doctrine since there was no murder of which the accomplices of the underlying target crimes could be guilty based on a theory of natural and probable consequences. CALJIC 3.02 by its own terms did not apply and any error in giving it was harmless.id: 23027
The trial court did not err by failing to instruct that simple assault is a lesser included offense of assault on a child causing death. Defendant’s young son died of shock and hemorrhage due to blunt force trauma. He was convicted of assault on a child causing death in violation of Penal Code section 273ab. Given the measure of force applied by defendant, the trial court did not err by failing to instruct, sua sponte, on simple assault as a lesser included offense.id: 22953
The trial court erred by admitting as lay opinion the testimony of a resolution’s author as to its intent language because the language of the bill was unambiguous.Defendants were city officials convicted of misusing public funds. The trial court erred by admitting lay opinion on the meaning and intent of the credit card resolution. The author of the bill testified about her intent in drafting the resolution. However, the testimony was improper and irrelevant lay opinion as statements by a bill’s author as to its purpose are not cognizable evidence of the legislative intent. Courts look to the plain language of a statute first, and the language in the resolution was unambiguous.id: 22821
Gross vehicular manslaughter instruction did not eliminate the predicate offense element of reckless driving. Defendant was convicted of vehicular manslaughter with gross negligence. He argued the gross vehicular manslaughter instruction was deficient because it eliminated the requirement that the prosecution prove the predicate offense of reckless driving. The argument assumes that “gross negligence” is coextensive with the “wanton disregard for the safety of persons or property” as defined in the reckless driving instruction. However, “gross negligence” is judged under an objective, reasonable person standard. There was no instructional error.id: 22635
Any error in failing to instruct on involuntary manslaughter was harmless where the evidence did not support the theory that the gun was accidentally discharged. Defendant was convicted of first degree murder. He argued the trial court erred by refusing to instruct on involuntary manslaughter as the shooting could have occurred by accident while he was engaged in the misdemeanor of brandishing a weapon. However, the evidence showed defendant pointed the gun at the victim’s head, threatened to blow his brains out, and then fired twice. The jury was unlikely to believe the shooting was accidental.id: 22641
The transferred intent instruction as to the murder charges was warranted where defense counsel argued only one victim was killed intentionally.Defendant argued the trial court’s pinpoint instruction on transferred intent for the murder charges improperly conveyed to the jury that it should find defendant guilty of attempted murder without finding that he intended to kill the attempted murder victims. However, the instruction was warranted where defense counsel argued that only one victim was killed intentionally.id: 22771
The trial court was not required to instruct that a premeditated attempt to murder must have been a natural and probable consequence of the target offense.Defendant was convicted of robbery as an aider and abettor and attempted murder on the theory that the nontarget offenses of attempted murder were a natural and probable consequence of the target offense of robbery that defendant had aided and abetted. The jury also found the attempted murder was willful, deliberate and premeditated under Penal Code section 664, subd.(a). As to the premeditation allegation, the trial court was only required to instruct that the jury must find the attempted murder was a natural and probable consequence of the robbery. It was not required to instruct that premeditation must also be a natural and probable consequence of the robbery.id: 22792
The trial court did not err by refusing to instruct that unconsciousness could reduce murder to involuntary manslaughter.Defendant was convicted of second degree murder and gross vehicular manslaughter while intoxicated. She argued the trial court erred by refusing to give CALCRIM No. 626 which provides that voluntary intoxication resulting in unconsciousness can reduce a charge of murder to involuntary manslaughter. However, the evidence did not support the instruction given the evidence of defendant’s driving and her later interactions with people. That she later had no recollection of the events and may have suffered an alcohol-related blackout did not require the instruction. Moreover, the 1995 amendments to Penal Code section 22 precluded her from relying on unconsciousness caused by voluntary intoxication as a defense to a charge of implied malice murder or gross vehicular manslaughter.id: 22472
The trial court did not err by failing to instruct on imperfect self-defense where there was evidence of past abuse but not of defendant’s fear of imminent harm. While the evidence established past abuse by the victim, and a fear of future abuse, it did not establish imminence or that defendant believed harm was imminent. The trial court therefore did not err by failing to instruct on the imperfect self-defense or imperfect defense of others.id: 22347
Instructions on deciding between degrees of murder did not suggest jurors should return a verdict of first degree. Defendant argued the instructions given by the court on deciding the degree of murder and between murder and manslaughter confused the jurors into thinking that if they unanimously believed the defendant was guilty of some offense they had to find it was first degree murder. Any possibility of confusion was dispelled by the instruction on the duty of an individual decision and any error was harmless in light of the true findings on the felony murder special circumstances.id: 22054
CALCRIM No. 600 properly explained that the crime of attempted murder requires the specific intent to kill.While the crime of murder does not always require the specific intent to kill, the crime of attempted murder does. The trial court properly instructed with CALCRIM No. 600 which clearly explains that attempted murder requires the intent to kill, and any further explanation of express malice was unnecessary and likely confusing. Moreover, there was sufficient evidence of intent to kill where defendant fired seven shots near the victim as he ran away.id: 22096
The trial court had no sua sponte duty to instruct on imperfect self-defense where the threats to defendant were real and his fear was not unreasonable.The evidence did not support an imperfect self-defense instruction where defendant shot at the Sentra after that car followed his car with its occupants yelling gang threats, attempted to block his car, and one of the occupants of the Sentra started to open the door with a black object in his hand. The evidence showed defendant had an actual fear of death or bodily injury, but not that his fear was unreasonable. And contrary to defendant’s claim, a trial court need not instruct on imperfect self defense every time it instructs on perfect self-defense.id: 22440
CALCRIM instructions properly describe the imminence requirement for imperfect self-defense.Defendant argued the CALCRIM instructions (505 and 571) do not correctly set out the imminence requirement for imperfect self-defense. The instructions say there can be no self-defense against a threat of future harm, and defendant argued imminent peril is one that lies in the immediate future. However, it is not reasonably likely the jurors understood the instructions to foreclose the application of the theory of imperfect self-defense.id: 22445
The trial court did not prejudicially err by failing to instruct on subjective awareness for purposes of gross negligence. Defendant was convicted of second degree implied malice murder following a fatal accident she caused by driving while intoxicated. She argued the instruction the court gave on gross vehicular manslaughter while intoxicated failed to state that the jury should consider her actual awareness of the risk of harm. Assuming the court should have instructed on subjective awareness, any error was harmless where it was not reasonably probable such an instruction would have ended in a better result.id: 22247
The trial court did not err by failing to specify that the sudden escalation concept applied to imperfect self-defense.Defendant argued that the imperfect self-defense instruction given by the court erroneously failed to describe the sudden escalation concept - the right of an original aggressor to use deadly force if his opponent responded to nondeadly force with sudden and deadly force. However, escalation did not apply factually where defendant admitted things had cooled down and defendant’s accomplice then escalated things. Even if the opponent did escalate things, defendant did not show that the escalation exception applies to imperfect self defense.id: 22216
Evidence was insufficient to support an instruction on unconsciousness from voluntary intoxication to reduce the murder to involuntary manslaughter.Defendant was convicted of second degree murder (implied malice) in a drunk driving incident. He argued the trial court erred by refusing to instruct on the defense of unconsciousness as a result of voluntary intoxication. He argued this as a partial defense seeking to reduce the offense to involuntary manslaughter. However, there was insufficient evidence to support such an instruction. Defendant was intoxicated, attempting to sober up, and focused on getting himself home. The facts did not show that he was unconscious due to voluntary intoxication when the accident occurred.id: 22156
The trial court did not err by failing to instruct that for purposes of the lying-in-wait theory of first degree murder the period of watching and waiting had to be substantial.The waiting and watching required to support a first degree murder conviction on a lying-in-wait theory need not continue for any particular length of time. Therefore, the trial court was not required to instruct the jury that the period of watching and waiting need be substantial. id: 21870
The trial court did not err in failing to instruct on involuntary manslaughter as a lesser included offense of provocative act murder. The trial court did not err in refusing to instruct on involuntary manslaughter as a lesser included offense of murder where defendant was convicted of murder under the provocative act murder doctrine. That theory requires the defendant intentionally perform a provocative act that was dangerous to human life. Where the evidence shows an intentional killing, no instruction on involuntary manslaughter is required.id: 21932
The trial court did not err in failing to instruct sua sponte on self-defense as it related to provocative act murder. Defendant argued the jury should have been instructed that the provocative act murder theory would not apply if Canas (the intended victim who took the gun and killed the accomplice) used lethal force solely to prevent an escape, rather than a response to a provocative act. However, the court did not err by failing to instruct sua sponte on self-defense as it pertained to Canas and whether he was legally justified in shooting Morales as Morales ran away.id: 21931
The trial court did not prejudicially err in giving the wrong provocative act murder instruction where the evidence presented and the prosecutor’s argument show she was convicted based on her own acts and not those of her accomplice. Defendant argued the trial court erred by instructing on provocative act murder under CALCRIM No. 560, rather than 561, which is recommended when the provocative acts are committed by an accomplice. However, the instruction given did not permit defendant to be convicted of provocative act murder based solely on the provocative acts of her accomplice, and the prosecutor argued she committed murder because of her acts. id: 21929
Failure to instruct that for a defendant to be convicted of first degree murder he had to have acted willfully and with premeditation in the attempted murder was harmless where evidence shows defendants acted willfully and with premeditation.The California Supreme Court held in this case that a defendant who commits an attempted murder may also be liable for first degree murder when his accomplice is killed by the intended victim in the court of the attempted murder. (People v. Concha (2009) 47 Cal.4th 653.) The court concluded the trial court erred by failing to instruct that for a defendant to be found guilty of first degree murder he must have acted willfully and with premeditation. On remand, the Court of Appeal found the instructional error was harmless where the jurors would have found beyond a reasonable doubt that each defendant personally premeditated and deliberated the attempted murder. id: 21895
The CALCRIM instruction on imperfect self-defense relating to attempted voluntary manslaughter incorrectly required both the belief in imminent danger and the need for deadly force must be unreasonable.CALCRIM No. 571 on imperfect self-defense relating to an actual killing (voluntary manslaughter) is inconsistent with CALCRIM No. 604 on imperfect self-defense relating to attempted voluntary manslaughter in that the former tells the jury the defense applies if either of defendant’s two beliefs (imminent danger and need to defend) was unreasonable while the latter says it exists if both beliefs were unreasonable. The former is correct and the unreasonableness of either belief would be sufficient to transform perfect self-defense into imperfect self-defense. However, the erroneous instruction on attempted voluntary manslaughter was not prejudicial to defendant who was convicted of attempted murder.id: 21367
The trial court was not required to instruct on implied malice murder as a lesser included offense of first degree felony murder where the evidence did not show a dangerous act. Defendant argued the trial court erred by failing to instruct on implied malice second degree murder as a lesser included offense of first degree felony murder. That question has not been decided, and there was no need to decide it here since the evidence did not support the instruction where defendant claimed that his unauthorized presence in the victim’s living room was so startling and stressful as to lead to the victim’s cardiac arrest and death.id: 21531
The trial court did not have a sua sponte duty to instruct on accident as a defense to murder.Defendant argued the trial court erred by failing to instruct on accident as a complete defense to the murder. However, a claim of accident to a charge of murder is not an affirmative defense that can trigger a duty to instruct on the court’s own motion. id: 21731
The causation instructions on murder by torture properly informed the jurors that torture had to be a substantial factor contributing to the death.Defendant argued the trial court failed to properly instruct on causation because it informed the jury that if defendant’s torture was merely “operative at the moment of” death, he was guilty of first degree murder even if the torture did not cause the death. However, the instruction required the jury to find defendant’s torture was a substantial factor contributing to the death. The court had no duty to define “operative” or “substantial factor.” Finally, the court was not required to instruct on “but for” causation. id: 21730
Where the involuntary manslaughter charge was based on unlawful predicate acts, the trial court did not err by failing to instruct on criminal negligence.Defendant argued the involuntary manslaughter instructions were deficient for lack of an instruction on criminal negligence principles. However, the court adequately advised the jury of the criminal negligence mens rea applicable to involuntary manslaughter by instructing that the predicate crimes underlying the involuntary allegation must have been committed in a manner that posed a high risk of death or great bodily injury.id: 21778
The trial court did not err by failing to amplify, sua sponte, the standard instruction on provocation to support a verdict of second degree murder. Defendant was convicted of first degree murder on a theory of premeditation and deliberation. He argued the standard instruction on provocation (CALCRIM No. 522) was incomplete and misleading as it relates to second degree murder. However, it is likely that the jurors understood that the existence of provocation can support the absence of premeditation and deliberation, and without a request for further instruction the trial court was not required to amplify the instructions to explain this point.id: 21521
Evidence did not support an aiding and abetting suicide as a lesser related offense to murder instruction where defendant claimed his wife died as a result of a mutual suicide pact that he survived.Defendant argued defense counsel rendered ineffective assistance by not requesting an instruction on aiding and abetting a suicide as a lesser related offense to murder. Because counsel did not request the lesser related offense instruction the record was silent as to whether the prosecutor would have consented to it. But the evidence did not support the instruction even accepting defendant’s claim that his wife was killed as part of a mutual suicide pact that he happened to survive. He claimed they choked each other simultaneously with ties. But by pulling the tie he had placed around her neck defendant committed murder. The “single instrumentality” exception did not apply where the neckties each used were separate instruments. id: 21560
No sua sponte instruction on voluntary intoxication was required based upon the testimony of a witness that defendant looked like a staggering drunk as he crossed the street.There was no evidence showing defendant had been drinking or that he was incapable of forming the intent required for attempted murder. The testimony of a witness that defendant “looked like a staggering drunk” as he ran across the street did not require the trial court to instruct sua sponte on voluntary intoxication. id: 21098
Attempted murder instructions did not discourage the jurors from considering the conflicting evidence regarding intent to kill.Pursuant to CALCRIM No. 600, the jurors were told that to convict defendant of attempted murder they had to find he took a direct but ineffective step towards doing so, and “ a direct step indicates a definite and unambiguous intent to kill.” This instruction did not discourage the jury from properly considering or weighing all of the conflicting evidence concerning intent to kill.id: 21113
The trial court’s failure to give the Dewberry instruction was harmless in light of other instructions on the subject.The trial court erred by failing to give the Dewberry instruction informing the jurors that if they could not unanimously agree on the degree of murder, they should return a verdict of second degree. However, the message was delivered in other properly-given instructions.id: 21094
The evidence was insufficient to support an instruction on heat of passion/sudden quarrel manslaughter where defendant testified he did not act rashly when using the bat defensively.Defendant was convicted of second degree murder. The trial court did not err in refusing to instruct on the sudden quarrel/heat of passion theory of manslaughter where defendant’s own uncontested testimony established that he did not act rashly or without due deliberation and reflection or from strong passion where he claimed to have used the baseball bat defensively to fend off an attack from the alleged homicide victim. Assuming it was error to refuse the requested instruction, the error was harmless under the Watson standard where the jury rejected the factual basis for finding of provocation.id: 21088
The CALCRIM instruction for gross vehicular manslaughter while intoxicated conveyed the equivalent of “conscious indifference.”The trial court did not err in failing to instruct that gross negligence – one of the elements of gross vehicular manslaughter while intoxicated – requires conscious indifference to consequences. No instruction was necessary because CALCRIM No. 590, the pattern instruction on gross vehicular manslaughter while intoxicated the trial court gave here, conveys the equivalent of “conscious indifference” by informing the jury that gross negligence exists only if “a reasonable person would have known that acting in that way would create a high risk of death or great bodily injury.id: 21087
The trial court had no duty to instruct on voluntary manslaughter absent evidence of an on-the-spot explosion even though the men had been arguing.The trial court did not err in failing to instruct on voluntary manslaughter based on heat of passion as a lesser-included offense of the charged murder. Defendant and the victim had been close friends until the victim learned defendant was having an affair with the victim’s ex-wife. While the situation had generated some anger between the two men, there was no evidence that defendant had suddenly and immediately reacted to something the victim said or did.id: 21063
The trial court did not err in refusing to instruct on voluntary manslaughter where the man who confronted defendant was not aggressive and his fleeting gang reference would not arouse homicidal feelings in a
reasonable person. Defendant argued there was sufficient evidence of provocation to warrant a voluntary manslaughter instruction where Pereira was the first to confront defendant who had come to pick up two girls who were socializing with Pereira’s friends. While Pereira confronted or talked to defendant, there was no evidence that he was aggressive. Moreover, even Pereira made a fleeting gang reference, a reasonable person would not have been provoked to the point of homicidal rage. id: 21025
Voluntary manslaughter instructions were not required where defendant contested his identity as the killer, and the taunting words by the victim were not sufficiently provocative.The trial court did not err in denying defendant’s request to instruct the jury on voluntary manslaughter as a lesser included offense of murder since defendant denied being the killer and the taunting words by the victim were insufficient provocation to establish involuntary manslaughter.id: 20838
“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
The jury was informed that imperfect defense of another would eliminate malice aforethought.Defendant argued the trial court erred by failing to expressly instruct the jury that intent to kill of conscious disregard for life is an essential element of voluntary manslaughter as described by People v. Blakely (2000) 23 Cal.4th 82, and People v. Lasko (2000) 23 Cal.4th 101. However, the jury was told that a killing in imperfect self-defense, whether intentional or in conscious disregard of life, is voluntary manslaughter.id: 20662
CALCRIM voluntary manslaughter instructions were not defective for failing to specify that the imperfect defense of another eliminates malice.Defendant argued the voluntary manslaughter instructions were incomplete since the trial court failed to instruct the jury that the imperfect defense of another eliminates malice. However, it did not matter that the CALCRIM instructions failed to make that point because the instructions as a whole adequately covered the subject.id: 20661
The trial court properly refused to instruct on involuntary manslaughter as a lesser included offense of murder where the victim died following an assault with a firearm. Defendant struck the victim in the face with the butt of a shotgun causing him to fall, hit his head on the sidewalk and die. Defendant argued the trial court erred in denying his request to instruct on involuntary manslaughter as a lesser included offense of murder based on his testimony that he struck the victim without an intent to kill and only after the victim lunged at the gun. An unintentional killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter. Because assault with a firearm is inherently dangerous, the court properly concluded the evidence could not support involuntary manslaughter. id: 20287
The trial court reasonably found the jury should be instructed on perfect self-defense so that it could best understand the defense of unreasonable self-defense. The defense theory at trial was that defendant killed the victim in unreasonable self-defense, seeking a voluntary manslaughter conviction. He argued the trial court erred in instructing on the complete defense of self-defense in addition to unreasonable self-defense. However, the court reasonably concluded that instructing the jury on perfect self-defense would help it understand fully the law of imperfect self-defense.id: 20286
Kill zone instruction did not allow an attempted murder conviction based on the intent to harm rather than kill.Defendant argued the instruction on the concurrent intent to kill others within the “kill zone” improperly allowed the jury to find him guilty of attempted murder merely by finding that defendant intended to harm rather than kill, those in the zone of danger. However, in light of the other instructions, no reasonable juror could have failed to understand that the law required an intent to kill.id: 20285
The trial court did not err in failing to instruct on assault with a firearm as a lesser included offense of attempted murder committed by the intentional discharge of a firearm.The trial court did not err in failing to instruct on assault with a firearm as a lesser included offense of attempted murder despite defendant’s claim that because the allegations set forth in the enhancements as part of the accusatory pleading, that under the elements test, the wrongful discharge of a firearm became an LIO of attempted murder.id: 20283
The trial court did not err in failing to instruct on superseding intervening cause where defendant beat the victim until he was unconscious even though another person later arrived and stomped the victim. Defendant was convicted of second degree murder. He participated and encouraged other gang members in the beating of the victim who was unconscious on the ground after the beating. Defendant left the scene but others remained on his porch drinking. Thereafter, Johnson approached and began to stomp on the victim. The trial court gave the standard causation instructions but did not err in failing to instruct on superseding intervening cause. Whether or not Johnson’s arrival and beating was foreseeable, the victim’s death from the previous beating was.id: 20469
Unreasonable self-defense did not apply where the defendant burglarized the victim's hotel room thereby creating the circumstances which justified the victim's lawful physical resistance.Defendant was convicted of aggravated mayhem. He argued the trial court erred in failing to instruct on unreasonable self-defense. However, defendant burglarized the victim's hotel room while the victim was asleep, so he created the circumstances that justified the victim's lawful physical resistance. Moreover, the unreasonable self-defense theory does not apply to aggravated mayhem.id: 20255
Failing to request an instruction on second degree murder as a lesser offense was not invited error and the failure to so instruct was not error where the evidence only showed first degree felony murder.The trial court instructed on first degree felony murder and the robbery - murder special circumstance. Defendant argued that court erred in failing to instruct on the lesser included offense of second degree murder. First, trial counsel's agreement that the instruction was not required was not "invited error" since counsel expressed no tactical purpose in agreeing the instruction was not required. Next, the instruction on second degree murder was not required where the evidence showed only that the murder was committed during a robbery and could have only have been first degree murder.id: 20250
The provocative act murder instruction properly informed the jurors that defendants could not be held liable for murder if their accomplice was killed by the assault victim based solely on provocative acts by the accomplice.Defendants were convicted of the first degree murder under the provocative act theory where the person they attacked (Harris) responded by stabbing and killing an accomplice (Sanchez). Contrary to the defendant's claim, the trial court properly instructed the jury that if Sanchez's own provocative act towards Harris was the sole cause of Sanchez's death, the defendants could not be held liable for his murder.id: 20216
Evidence did not require instructions on provocation where it did not show his actions were an emotional response to gang challenges.Defendant argued the court erred by failing to instruct on provocation as it related to premeditation and deliberation. However, on this record, CALJIC 8.73 amounted to a pinpoint instruction. Defendant claimed the gang challenges by the others may have emotionally aroused and provoked his assault on the victims. But the record contained no evidence of what, if any, response defendant had to the purported challenges.id: 18637
A person may be convicted of attempted murder under a natural and probable consequences aiding and abetting theory even if he or she did not personally premeditate the act.Defendant argued the instructions given improperly allowed the jurors to find premeditation for attempted murder, even though she was an aider and abettor who did not share the intent of the principals. However, a person may be convicted of premeditated attempted murder as an aider and abettor even if he or she did not personally act with deliberation and premeditation. This applies in a case involving the natural and probable consequences doctrine. Even if the instructions on premeditation were improper, the error was harmless where the jurors also convicted defendant of conspiracy to commit murder which requires a finding of premeditation and deliberation.id: 20036
The trial court did not err by instructing on felony murder where the indictment referred only to first degree premeditated murder.The indictment charged defendant with first degree premeditated murder. The trial court did not err by instructing the jury on the separate theory of felony murder.id: 19955
Court did not commit prejudicial error in failing to elaborate on concurrence between the act and the specific intent.Appellant was convicted of second degree murder after assisting the suicide of a friend. He argued the court erred in giving a shortened version of CALJIC 3.31, i.e., telling the jury there must be a concurrence between act and specific intent but without spelling out the specific intents for each charged crime as provided for in CALJIC 3.31. Since second degree murder based on implied malice is a general intent crime but with the requirement of a certain mental state, to avoid confusion, the court should also have given 3.31.5. Any error was harmless where the concurrence between intent and conduct was not specifically in dispute. Absent facts raising a concurrence issue, the jury would not have rendered a second degree murder conviction unless it thought the requisite mental state existed jointly with defendant's conduct of tying up the victim and holding him down.id: 10190
A jury may consider all circumstances of defendant's intoxication rather than just driving conduct in determining gross negligence for gross vehicular manslaughter while intoxicated.CALJIC 8.94 is patterned upon <i>People v. Von Staden</i> (1987) 195 Cal.App.3d 1423, and tells the jury it must determine from all of the circumstances of the defendant's intoxication or manner of driving whether his or her conduct constituted gross negligence. Defendant argued the gross negligence finding must be limited to the manner of defendant's driving only. However, when determining gross negligence for purposes of gross vehicular manslaughter while intoxicated under Penal Code section 191.5, the jury may consider the overall manner in which the defendant operated his vehicle including the circumstances of the defendant's intoxication.id: 10181
Jury was properly instructed that intoxication is not relevant once a jury finds defendant knowingly and intentionally aided a criminal act, and it did not matter that defendant was perpetrator with the least knowledge of and participation in the offense.Defendant was convicted of attempted murder as an aider and abettor. She argued CALCRIM 404 was misleading regarding the effect of intoxication on her understanding of whether the attempted murder was a reasonable foreseeable consequence of the assault. Contrary to her claim, the fact that she was the person most far removed from the assault did not matter because the jury need not measure the degree of a person's knowledge or intent. Moreover, the instructions correctly explained that once the jury finds a defendant knowingly and intentionally aided and abetted a crime, intoxication was irrelevant to the extent of criminal liability as to whether the additional crime was reasonably foreseeable.id: 20037
Any error in failing to instruct that shooting at an occupied vehicle won't support second degree felony murder was harmless where the verdicts showed the jury found express malice.Defendant argued that his second degree murder conviction had to be reversed, because under the People v. Ireland merger doctrine, second degree felony murder cannot be based on the predicate felony of shooting at an occupied vehicle in violation of Penal Code section 246. The court found section 246 may be used to support second degree felony murder, but any error in failing to so instruct was harmless where the attempted murder verdict shows the jury found an intent to kill, and therefore express malice.id: 19994
"Kill zone" instruction was proper where defendant mistakenly identified the victims.Defendant argued the trial court erred in instructing with CALJIC 8.66.1 suggesting an intent to kill one person may also amount to an intent to kill others in a zone of risk, as there was no evidence of any primary victim. However, the jurors could reasonably infer defendant shot at the Millers intending to kill any rival gang members in the kill zone. The fact that defendant mistakenly identified his victims did not detract from the fact that he intended to kill the people at whom he shot.id: 19995
Victims driving a car through a rival gang's territory did not constitute provocation that would support a voluntary manslaughter conviction.There was no error in failing to instruct on voluntary manslaughter or attempted voluntary manslaughter. Even if defendant believed the white car was driven by rival gang members driving through TRG territory, this was not sufficient provocation to arouse the passions of an ordinarily reasonable person.id: 19996
By improperly combining alternatives in the felony murder instruction, the trial court did not eliminate the requirement that the jury find defendant intended to commit the underlying crimes.When instructing on felony murder (using CALJIC 8.21) the court described a killing "during the commission of or attempted commission of the crime..." The "use note" for the instruction says the court should have selected one choice or the other depending on the facts of the case. Defendant argued the instruction, as given, eliminated the requirement that the jury find defendant intended to commit the underlying crimes. However, there is no reasonable likelihood that the jurors interpreted the instruction in this manner.id: 20004
The trial court had no duty to instruct on theft as an LIO of robbery where robbery was not charged but was used as the basis for felony murder.The trial court did not err in failing to instruct on theft as a lesser included offense of robbery where robbery was not a charged offense but formed the basis for a felony murder charge and a special circumstance allegation.id: 20005
CALCRIM No. 600 did not erroneously define "kill zone" by replacing "everyone" with "anyone."CALCRIM No. 600 does not improperly define "kill zone." The concept described in People v. Bland (2002) 28 Cal.4th 313, defined kill zone as the zone in which a defendant intends to kill "everyone" to ensure harm to a target victim. CALCRIM No. 600 was not erroneous by exchanging the work "anyone" for "everyone." Moreover, the term "kill zone" was not argumentative.id: 19951
The trial court's use of the phrase "conscious disregard for human life" did not misrepresent the required intent for voluntary manslaughter.Defendant argued the trial court erred in giving a modified version of CALCRIM No. 252 which used the same "conscious disregard for human life" language to define both the implied malice necessary for murder and the general intent for voluntary manslaughter. However, the use of that phrase in both instructions did not render the trial court's concurrence of act and intent instruction erroneous. Moreover, the jury was properly instructed on the elements of voluntary manslaughter in other instructions.id: 19817
Retroactive application of expanded voluntary manslaughter definition following Blakely and Lasko was not improper. In People v. Blakely (2000) 23 Cal.4th 82 and People v. Lasko (2000) 23 Cal.4th 101, the court found voluntary manslaughter can be committed without the intent to kill if a person acts with a conscious disregard for life. The theory was thereafter incorporated into CALJIC 8.40, the voluntary manslaughter instruction. Defendant argued the trial court erred in giving that instruction in his case where the charged offense occurred in 1989, before the holdings in Lasko and Blakely. However, there was no error since the retroactive application of the expanded definition of voluntary manslaughter was foreseeable, not harmful. Moreover, the Blakely and Lasko cases highlight certain differences that show that when the new definition may be applied retroactively.id: 19712
The trial court did not err by failing to instruct on voluntary intoxication in deciding whether defendant acted with a conscious disregard for human life.Defendant was convicted of voluntary manslaughter. He argued the trial court erred in failing to instruct the jury could consider his voluntary intoxication in deciding whether he acted with conscious disregard for human life. However, voluntary intoxication is irrelevant to proof of the mental state of implied malice or conscious disregard. Moreover, Penal Code section 22, which addresses the issue does not violate equal protection by applying different rules to defendants charged with first degree express malice murder than to those charged with implied malice killings since an offender's culpability is only determined by the conviction, not the charging papers.id: 19684
Defendant who shot and killed someone in a mutual road rage incident was not entitled to instructions on self-defense or voluntary manslaughter. The victim intentionally cut off the truck in which defendant was a passenger. The driver of defendant's car then made extraordinary efforts to catch up with the victim's car, and defendant then fired a shot at the victim's car killing a passenger. Defendant was convicted of first degree murder. The trial court did not err in refusing to instruct on self-defense or imperfect self-defense because there was no evidence that defendant fired out of fear or appeared fearful. Moreover, voluntary manslaughter instructions based on heat of passion were unnecessary since a reasonable person angered by the victim's aggressive driving would not have made the serious effort to catch up with the offending driver and ultimately respond by firing shots.id: 19631
Evidence did not support second degree murder instructions where the evidence demonstrating premeditation was overwhelming.The trial court did not err in refusing to instruct on second degree murder at defendant's capital trial. The evidence demonstrating premeditation was overwhelming and there was no evidence that defendant happened upon the victims and rashly decided to kill them.id: 19603
Any error in failing to instruct on second degree murder at the capital trial was invited by defense counsel's statements and harmless.Defendant argued the trial court erred by failing to instruct the capital jury on all three theories of second degree murder and on involuntary manslaughter. However, any error was invited where defense counsel expressed a tactical purpose in resisting those instructions. Moreover, any error was harmless where the evidence of first degree murder was so strong that there was no reasonable probability the error affected the result.id: 19524
CALJIC 8.73 regarding provocation reducing a murder to second degree rather than manslaughter is a pinpoint instruction that need not be given sua sponte.The trial court did not err in failing to instruct on its own (with CALJIC 8.73) that provocation inadequate to reduce a killing from murder to manslaughter nonetheless may suffice to negate premeditation and deliberation, thus reducing the crime to second degree murder. CALJIC 8.73 is a pinpoint instruction that need not be given on the court's own motion.id: 19225
Imperfect self-defense instruction was not required where defendant, an armed deputy sheriff, shot a 15 year-old girl who pointed a finger at him.The evidence was insufficient to support an instruction on the imperfect self-defense theory where the psychiatric testimony showed defendant feared more for his emotional survival than his physical survival. Defendant was an armed deputy sheriff and could not have honestly feared death or great bodily harm from a 15 year-old girl pointing a finger at him.id: 19226
The court had no duty to instruct on involuntary manslaughter where the evidence did not show a death from a fistfight but, rather, that defendant savagely beat the victim to death.Defendant argued the trial court erred in failing to instruct on involuntary manslaughter as a lesser included offense of murder. However, defendant did not merely start a fist fight in which an unlucky blow resulted in death. Rather, he savagely beat the victim to death. Since the evidence did not raise a material issue as to whether defendant acted without malice, the court had no sua sponte duty to instruct on involuntary manslaughter.id: 19202
The court has no sua sponte duty to instruct on theft as a lesser included offense where felony-murder, but not robbery, is charged.Regardless of whether the prosecution is brought against a principal or an aider and abettor, theft is not a lesser included
offense of a charged crime in a felony-murder prosecution unless robbery is separately charged in the accusatory pleading.id: 19155
The trial court did not err in failing to instruct that a murder is complete when the fatal blow is struck.Defendant argued the trial court erred by failing to instruct sua
sponte on when a murder is complete. Defendant, who may have been convicted as an aider and abettor, claimed the court should have instructed that a murder is complete when the fatal blow is
struck, even if the victim lives for a substantial period of time. However, the court did not err in failing to so instruct as a murder is not complete until the victim dies.id: 19157
Defendant was not entitled to instructions on second degree murder as there was no evidence that would have absolved him of felony murder but not second degree murder based on malice.The information charged murder with malice aforethought but the
prosecutor tried the case solely on a felony murder theory. The trial court did not err by refusing to instruct on second degree murder because there was no substantial evidence that, if believed by the jury, would have absolved defendant of felony murder, but not second degree murder based on express malice.id: 19120
The trial court did not prejudicially err in failing to extend "unconsciousness" instructions to situations where it is induced by chronic drug abuse and head injuries rather than voluntary intoxication.The trial court instructed that voluntary intoxication, even where it results in unconsciousness, cannot excuse homicide. Defendant argued there was evidence supporting unconsciousness based on chronic drug abuse and head injuries which required further instruction on unconsciousness. Any error in failing to give more complete instructions was harmless where there was strong evidence showing defendant was conscious during the robbery. Moreover, any error in failing to define "unconsciousness" was harmless as the instruction given adequately conveyed the concepts defendant stressed. Finally,
the court did not err by instructing on involuntary manslaughter as a general intent crime where the theory of involuntary manslaughter was unconsciousness by voluntary intoxication.id: 19057
The trial court did not err in refusing to instruct the jury not to consider the postmortem gunshot wounds as evidence of torture. The trial court did not err in refusing to instruct the jury not to consider the victim's gunshot wounds in determining whether she had been tortured. Under the instructions given, the jury would not have considered the postmortem gunshot wounds as themselves constituting torture, since the wounds were not to a living being and not the cause of death.id: 18837
Evidence that defendant may have harbored some fear of future harm did not justify an instruction on imperfect self-defense.Although defendant had heard some threats that the victim wanted to kill him, defendant never saw the victim armed, never said he believed the victim was armed and never indicated he felt an imminent threat of death or great bodily injury when he drew the firearm from his waistband. While the evidence showed defendant may have harbored some fear of future harm, there was no indication that he had an actual belief in the need for self-defense. The trial court properly refused to instruct on imperfect self-defense.id: 18842
The victim's taunting of defendant in a bar was insufficient to require voluntary manslaughter instructions based on heat of passion.A witness testified the victim approached defendant in a bar, called him names, and dared him to use his gun. Defendant responded by telling the victim to calm down and that he did not want any problems. This evidence showed the subsequent shooting was not done under the heat of passion. The evidence was also insufficient to satisfy the objective requirement showing heat of passion. While provocative conduct by the victim may be verbal, the victim's taunts were insufficient to cause an average person to become so inflamed as to lose reason and judgment.id: 18843
Evidence that the first shot was fired unintentionally did not require instructions on involuntary manslaughter where defendant intentionally kept firing, inflicting at least one other fatal wound.Court erred by failing to instruct on involuntary manslaughter in light of the evidence that he may have mistakenly shot the victim while negligently attempting to defend against a perceived threat. However, even if defendant unintentionally fired the first shot, involuntary manslaughter instructions were not necessary where defendant intentionally kept firing his weapon, inflicting at least one other fatal wound.id: 18844
Murder instructions included the concept of willfulness.Defendant argued that CALJIC 3.31.5 was fatally flawed because, although it defined the mental state for first degree murder to include premeditation and deliberation, it failed to include the critical element of willfulness. However the jury was instructed on the concept of express malice which includes the concept of willfulness.id: 18723
The trial court did not err by refusing to instruct on second degree felony murder in the murder by poison case where there was no evidence of an intent to injure rather than kill the victim.Murder by the administration of poison is murder of the first degree. However, a defendant is entitled to an instruction on second degree felony murder if there was evidence from which reasonable jurors could conclude he only intended to injure the victim when he poisoned her. However, defendant deliberately put cyanide in a gin bottle from which he expected the victim to drink. This showed a conscious disregard for the victim's life if not a specific intent to kill. Even if the instruction should have been given, the failure to do so was harmless where the jury necessarily found in the true finding for the special circumstance that defendant intended to kill the victim when he poisoned her.id: 18698
The trial court did not err by applying rule of Lasko allowing a conviction of voluntary manslaughter without an intent to kill to an offense that occurred in 1989.Defendant argued the trial court erred in giving an instruction on voluntary manslaughter which allowed a conviction based on a homicide committed without an intent to kill. The Supreme Court authorized such instructions in People v. Blakeley (2000) 23 Cal.4th 82, and People v. Lasko (2000) 23 Cal.4th 101. Defendant argued the new instruction should not have applied retroactively when the charged offense was committed in 1989. However, the expanded definition of voluntary manslaughter did not necessarily work to the defendant's disadvantage. Moreover, Lasko did not establish a new rule of law, but rather clarified the statutory definition of voluntary manslaughter contained in Penal Code section 192, subd.(a).id: 18574
The court did not err in instructing on voluntary manslaughter using Blakeley and Lasko where the offense was committed in 1989.Defendant was charged in 2002 with a murder that took place in 1989. He was convicted of voluntary manslaughter. He argued the trial court erred by instructing on voluntary manslaughter pursuant to People v. Blakeley (2000) 23 Cal.7th 82, and People v. Lasko (2000) 23 Cal.4th 101, which allowed a conviction absent an intent to kill. He claimed the jury should have been instructed according to the earlier law that voluntary manslaughter required an intent to kill. However, Lasko did not establish a new rule of law, it clarified the statutory definition of voluntary manslaughter contained in Penal Code section 192, subd.(a). The statute did not provide that intent to kill was an element. Since it was not a new law, the decision could be applied retroactively.id: 18497
The court did not err in denying defendant's request to instruct with CALJIC 3.32 based on evidence that defendant's condition deteriorated after the crime.Defendant argued the trial court erred in refusing to instruct with CALJIC 3.32 regarding defendant's mental state at the time of the crime. At best, the doctor's equivocal testimony established that he may have suffered from long-standing latent psychosis, and at some point his condition deteriorated. This was not evidence of his mental state at the time of the crime. The evidence was not sufficient to support the instruction.id: 18430
The trial court properly rejected the voluntary manslaughter instruction where defendant initiated the fight and shot the victim who was attempting to run from the scene.The trial court properly rejected the voluntary manslaughter instruction where defendant armed himself with a gun before confronting the group at the bus stop; hit Clive without provocation; and then shot the unarmed Clive who was attempting to run from the fight. The evidence was consistent only with first degree murder.id: 18392
The trial court did not err in modifying the involuntary manslaughter instructions by removing the portion relating to unconsciousness due to voluntary intoxication.Defendant argued the court erred by removing from the voluntary manslaughter instruction the statement that a defendant who kills while unconscious due to voluntary intoxication commits involuntary manslaughter rather than murder. Defendant agreed he was not unconscious at the time of the murder. While the trial court has a sua sponte duty to instruct on defenses relied upon by the defendant, voluntary intoxication does not constitute a defense. Instead, it is an attempt to raise a reasonable doubt on an element of a crime and does not trigger a sua sponte duty to instruct. In any event, the court gave a pinpoint instruction addressing the relationship of intoxication with mental state.id: 18242
Instruction which misnumbered the murder charge did not prevent the jury from convicting defendant of manslaughter as a lesser included offense of murder.A portion of the instructions incorrectly addressed voluntary manslaughter as a lesser included offense of murder in count one. However, a burglary was charged in count one, and murder was charged in count three. In light of the other instructions, the verdict forms and the prosecutor's argument, it is unlikely the jury failed to consider manslaughter as a lesser included offense of murder.id: 18253
The trial court did not err in failing to instruct on involuntary manslaughter where the evidence did not support defendant's claim of unconsciousness due to drug ingestion.Defendant, who was convicted of first degree special-circumstance murder argued the trial court erred in failing to instruct on involuntary manslaughter as a lesser included offense in light of the substantial evidence that he was unconscious due to his cocaine and alcohol ingestion at the time of the killing. However, defendant never referred to this unconsciousness in his statement to the police, and said instead that he is never incoherent when he smokes cocaine. Moreover, he was able to describe the crimes in great detail. The court properly declined to instruct on involuntary manslaughter.id: 18071
The court did not err in failing to instruct on provocation relating to intent to torture for torture murder.Defendant argued the trial court erred in failing to instruct on the relationship of provocation to the mental state necessary for murder by torture, that is, the intent to inflict extreme pain. He claimed the court should have instructed on provocation for purposes of voluntary manslaughter. However, to instruct on provocation for purposes of voluntary manslaughter would not have assisted the jury in determining whether provocation prevented the defendant from forming the necessary intent to commit torture.id: 18039
That the parties were drunk and arguing did not support heat of passion for voluntary manslaughter since they routinely acted in the same manner.The trial court instructed on several theories of murder including murder by lying-in-wait, murder by torture, and felony murder (arson). Defendant argued the court erred in failing to instruct sua sponte on voluntary manslaughter based on heat of passion. Evidence showed defendant was drunk and jealous, and that he was threatened by the victim. However, it did not satisfy the objective reasonable person requirement, which requires provocation by the victim. The evidence did not show the accused's heat of passion was due to sufficient provocation. While defendant and the victim had been arguing, that conduct was normal for them. Their conduct on the night of the killing was no different from many nights, and therefore the evidence did not support heat of passion.id: 18040
Court did not err in failing to instruct on necessity for manslaughter where there was a doubt between murder and manslaughter and it gave a similar instruction that identified no particular offenses.Defendant argued the trial court erred in failing to deliver CALJIC No. 8.72 sua sponte. The instruction tells the jurors that they must find manslaughter if they have a reasonable doubt whether the crime is murder or manslaughter. However, there was no error since the court instructed with CALJIC No. 17.10 that jurors must select the lesser offense if there is doubt between the lesser and greater offense.id: 17977
The trial court did not err in failing to instruct that attempted murder of a fetus is a lesser included offense to murder.Defendant repeatedly punched his pregnant girlfriend which resulted in a premature delivery and the death of the baby within several weeks. He was convicted of second degree murder. He argued the trial court erred by failing to instruct sua sponte on attempted murder of a fetus as a lesser included offense of murder. He reasoned that if his assault on the mother was meant to kill the fetus, that intent was thwarted by the subsequent delivery of the fetus, rendering his crime one of attempt only. However, attempted murder of a fetus is not a lesser included offense to murder of a human being under either the elements or pleadings test.id: 17944
Court did not err in failing to instruct on second degree murder where there was no substantial evidence that the killing did not take place in the course of a robbery.The trial court instructed on first degree felony murder. Defendant argued the court erred by failing to instruct on first degree premeditated murder and second degree murder. However, there was no substantial evidence presented at trial that the killing was other than robbery murder. It did not matter that the evidence was not inconsistent with the theory that defendant shot and killed the victim, and someone else came along later and removed the victim's wallet or that he may not have been carrying a wallet. These arguments were purely speculative.id: 17702
Evidence did not support voluntary manslaughter based on heat of passion where defendant had not seen his abusive grandparents for two weeks and became enraged when they refused to answer the doorbell.The trial court did not err in refusing to instruct on voluntary manslaughter based on heat of passion. The theory was that defendant had endured a long history of criticism, reproach and ridicule at the hands of his grandparents, principally his grandfather, that provoked him to homicide. However, the evidence indicated defendant had not been in contact with his grandparents for two weeks before he killed them. According to defendant, he flew into a rage when he rang his grandparents doorbell and they refused to answer. He did not encounter his grandparents until he had forced his way in and there was no evidence that either of them did anything to provoke a reasonable person to kill. The record lacks substantial evidence of sufficient provocation to arouse a homicidal passion in an ordinarily reasonable person, as required to instruct on voluntary manslaughter in the heat of passion.id: 17647
The trial court had no duty to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder.Defendant was convicted of attempted murder. He argued the trial court erred by failing to instruct on the lesser included offense of attempted voluntary manslaughter. However, there was no basis to instruct on voluntary manslaughter based on a theory of heat of passion or sudden quarrel because the evidence did not support such an instruction. Moreover, the lesser included offense was attempted voluntary manslaughter rather than voluntary manslaughter. Finally, in relying on attempted voluntary manslaughter based on conscious disregard, defendant missed the fundamental point that an attempt to commit a crime requires the specific intent to commit the crime, and one cannot intend to commit a reckless killing.
id: 17587
Trial court did not err in failing to instruct on involuntary manslaughter, despite defendant's cocaine and alcohol related condition where there was no evidence he was unconscious at the time of the killing.Defendant argued the trial court erred in failing to instruct on involuntary manslaughter as a lesser included offense of murder based on the evidence that he suffered from a debilitating mental state caused by the effects of cocaine and alcohol. However, the evidence did not show defendant's ingestion of cocaine and alcohol rendered him unconscious. Moreover, while the doctor testified defendant's drug consumption may have precipitated a "frenzied state" he did not indicate defendant was unconscious at the time of the attack. Finally, the manner of killing and defendant's statements prior to the crimes were inconsistent with any suggestion that defendant was unconscious when he committed the acts in question.id: 17557
Trial court did not err in instructing that a third party's action was an intervening cause between defendant's shooting and the death since the actions of the third party were foreseeable.Defendant argued the trial court should have instructed the jury that Gant's actions in strangling the victim and then cutting off her head could have been an independent intervening cause breaking the causal connection between defendant's shooting of the victim, and her death. However, to relieve a defendant of criminal liability, an intervening event must be unforeseeable. This was not. Even if Gant's actions constituted an independent intervening cause, defendant would still be criminally liable if his shooting was a concurrent cause, which any reasonable jury would find in this case.id: 17548
The trial court did not err in instructing on the doctrine of transferred intent to be applied when two victims were murdered, one intentionally, and one accidentally.Defendant argued that when he committed the murders in 1993, the law did not permit the doctrine of transferred intent to be applied when two victims were murdered, one intentionally, and one accidentally, He claimed it was not until the California Supreme Court issued its opinion in People v. Bland (2002) 28 Cal.4th 3113, that the law embraced the concept. He argued the instruction submitted to the jury improperly retroactively applied Bland's holding to him. However, his underlying premise is incorrect. The Courts of Appeal were in conflict on the issue. Moreover, nothing in the use note in the instruction CALJIC 8.65, suggested it could not be used in this situation. Finally, given the evidence of defendant's intent to murder the victim, any error was harmless beyond a reasonable doubt.id: 17251
In a case where the criminal conduct occurred prior to June 2, 2000, the trial court properly instructed, under Blakeley, that an unintentional killing in unreasonable self-defense is involuntary manslaughter, not voluntary manslaughter.Defendant argued the trial court erred when it instructed the jury that intent to kill is an element of voluntary manslaughter. However, consistent with People v. Blakeley (2000) 23 Cal.4th 82, as applied to conduct occurring prior to June 2, 2000, the trial court properly instructed the jury that an unintentional killing in unreasonable self-defense is involuntary manslaughter. This is because Blakeley involved an unforeseeable judicial enlargement of the crime of voluntary manslaughter. Such was not the case with People v. Lasko (2000) 23 Cal.4th 101, which apples whether the criminal conduct occurred before or after its June 2, 2000 date of decision.id: 16799
Defendant, who was obsessively stalking his estranged spouse, was not entitled to voluntary manslaughter instructions on a heat of passion theory.The trial court did not err in rejecting voluntary manslaughter instructions as a lesser included offense of murder based on heat of passion where the killings were a product of defendant's obsessively stalking his estranged wife. His wife did not provoke defendant by having a romantic relationship with another man five months after filing for divorce. Moreover, the ex-wife's conduct in this regard was not such as would cause an ordinary person of average disposition to act rashly and without deliberation or reflection.id: 16527
Court had no sua sponte duty to modify the provocative act murder instruction to require that the killing be a "reasonable" response to the provocation.The trial court did not err in failing to modify the provocative act murder instruction - CALJIC 8.12 - to suggest the killing had to be a "reasonable" response to defendant's provocative act. The standard language in the instruction rejects the suggested language and the court had no sua sponte duty to add it.id: 16484
The trial court had no sua sponte duty to instruct on lesser included offenses of first degree murder based on evidence of drug use where he was charged with derivative liability.Defendant argued the trial court erred in failing to instruct sua sponte on second degree murder, manslaughter, and battery as lesser included offenses of first degree murder given the evidence of his chronic drug use. However, defendant was charged with conspiring, soliciting, and aiding and abetting Hernandez in the murder. His criminal liability was thus derivative, for it depended on Hernandez' state of mind. Instructions on the lesser offenses were therefore not required.id: 16424
Standard implied malice instruction applies when death results from an inherently dangerous medical procedure.Defendant, un unlicensed doctor, was convicted of second degree murder following a botched unnecessary amputation. He argued the standard implied malice instruction (CALJIC 8.31) did not adequately inform the jury of the heightened mental state required for a finding of implied malice when death results from an inherently dangerous medical procedure. However, the standard instructions on implied malice are as useful in cases arising from alleged inadequate medical care as in any other context.id: 16367
Any error in failing to instruct on involuntary manslaughter as a lesser included offense of murder was harmless where the jury rejected the defense version of events under other properly given instructions.Defendant was convicted of capital murder based upon the killing of his mother during the commission of a felony. He testified that his mother allowed him into her house to retrieve his gun and that the killing occurred because he stumbled while carrying another gun which he did not know was loaded. He argued the evidence supported a lesser included offense instruction on involuntary manslaughter. However, the jury was instructed on theft as a lesser included offense of robbery and burglary, but the jury rejected the theft option by convicting defendant of robbery and burglary. Any error in failing to instruct on involuntary manslaughter was harmless where the jury rejected the defense version of events and found defendant had the intent to steal when he entered the house.id: 15427
Court did not err in refusing to instruct on the lesser included offense of voluntary manslaughter under the theory defendant acted with "imperfect duress."At defendant's murder trial, the court did not err in failing to instruct on the lesser included offense of voluntary manslaughter, under the theory he acted with "imperfect duress." The case law does not support use of imperfect duress to mitigate murder to voluntary manslaughter by negating malice. Moreover, imperfect duress does not negate specific intent to aid and abet murder. Finally, there was no evidence to support a finding that defendant's asserted belief he had to help kill the victims or else be killed was unreasonable.id: 15428
Defendant charged with murder testified he did not shoot the victim and presented no evidence of manslaughter and was therefore not entitled to manslaughter instructions.Defendant was convicted of second degree murder. He testified that he did not fire the fatal shot, and presented no substantial evidence that he committed the lesser and necessarily included offense of voluntary manslaughter. He was either guilty of murder or not guilty. He was not entitled to voluntary manslaughter instructions on heat of passion and imperfect self-defense.id: 15433
Defendant's single reference to intoxication in a statement to police did not create a sua sponte duty to instruct on manslaughter where defendant's actions were calculated.In his taped statement defendant told the police that he was intoxicated with cocaine at the time of the killing and he did not know what was going through his mind because he was so high. The court had no sua sponte duty to give manslaughter instructions in light of this statement. Defendant's actions were calculated and there was no evidence of an intense or enthusiastic emotion that would support voluntary manslaughter. Moreover, involuntary manslaughter could only argued if defendant's intoxication established a lack of consciousness. Read in context, defendant's remark suggested his intoxication led him to make a foolish choice, not that he lacked malice aforethought.id: 15434
Gross vehicular manslaughter while intoxicated instructions were not deficient in failing to state a lawful act must be committed in an unlawful manner with gross negligence.In a prosecution for gross vehicle manslaughter while intoxicated under Penal Code section 191.5, subd. (a), the court did not err in failing to define "unlawful killing" as a killing without excuse or justification. The court's definition was proper. Moreover, the instruction was not deficient in failing to state that a lawful act must be committed in an unlawful manner with gross negligence. Within the context of vehicle manslaughter committing a lawful act in an unlawful manner simply means to drive negligently, that is, without reasonable caution and care. Next, in defining the "lawful act/unlawful manner" alternative the court did not err in failing to say the lawful act must be dangerous to human life under the circumstances. The court did err in failing to instruct that such conduct had to be a cause of death but it is unlikely the error contributed to the verdict.id: 15437
GVMI instruction merely stated a legal point not in dispute, it did not remove an element from the jury's consideration or lighten the prosecutor's burden.When instructing on gross vehicular manslaughter while intoxicated for purposes of Penal Code section 191.5, the court stated: "The commission of an unlawful act with gross negligence would necessarily be an unlawful act dangerous to human life under the circumstances of its commission." Defendant argued the instruction represented a constitutionally impermissible mandatory presumption concerning the dangerousness element of the offense. However, the other instructions given required the jury to make all essential factual determinations to convict the defendant of GVMI, including whether she committed a Vehicle Code violation and whether she did so with gross negligence.id: 15438
Instructions were not deficient in failing to relate malice to the killing of the fetus as well as the killing of the mother.Defendant was convicted of the first degree murder of his pregnant ex-wife, and the second degree murder of the fetus. He argued the jury instructions were deficient because they did not separately define malice in terms that related specifically to the fetus. However, the instructions given by the court made plain that malice was a separate element that had to be proved for each of the two murders charged. Moreover, the verdict on the fetal murder charge clearly showed the jury was not confused by the reference to "human being" in the second degree murder instruction.id: 15439
Manslaughter instructions were not required for the killing of the fetus count where there was no evidence the fetus was born alive.Defendant was convicted of the first degree murder of his former wife, who was eight months pregnant, and the second degree murder of the fetus she was carrying. He argued the court should have instructed on manslaughter for the death of the fetus. He claimed the trial testimony created a factual issue as to whether the fetus was born alive and thus, was a human being under the manslaughter statutes. However, there was no evidence in the record that would suggest the fetus was born alive. The expulsion of the fetus from the womb in no way resembled the live birth of a human being. The injuries to the mother and fetus prevented the fetus from ever breathing.id: 15440
Second degree felony murder is not a lesser included offence of assault of a child resulting in death.Defendant was convicted of assaulting a child resulting in death under Penal Code section 273ab. He argued the court erred in failing to instruct on lesser included offenses. However, involuntary manslaughter is a lesser related, not a lesser included offense. Neither were instructions on second degree felony-murder required. Because the underlying felony conduct was not independent of an assault resulting in death, the killing was outside the felony-murder rule.id: 15441
The court did not err in instructing with CALJIC 4.20 that voluntary intoxication is not a defense to general intent crimes, and section 22, as amended does not violate due process principles.Defendant was convicted of second degree murder and gross vehicular manslaughter. She argued the court erred in instructing with CALJIC 4.20 regarding the effect of voluntary intoxication on the element of knowledge rather than CALJIC 4.21, and that Penal Code section 22 is unconstitutional. Both instructions are based on section 22 and CALJIC 4.20 prohibits the application of the defense of intoxication in a general intent crime. The effect of the 1995 amendment to section 22 was to preclude evidence of voluntary intoxication to negate implied malice aforethought. Nothing in the provision deprives the defendant of the ability to present a defense or relieves the prosecution of its burden to prove every element of the crime charged beyond a reasonable doubt, including, in this case, knowledge. The provision does not violate due process and the court did not err in instructing with CALJIC 4.20 rather than 4.21.id: 15442
The court did not err in permitting the jury to base two "unlawful act" findings (one for P.C. 191.5 and one for V.C. 23153) on the same underlying conduct.To commit gross vehicular manslaughter while intoxicated under Penal Code section 191.5, one must violate certain Vehicle Code sections, among them section 23153. Defendant noted that both Penal Code section 191.5 and Vehicle Code section 23153 have as alternative elements the commission of an unlawful act. She pointed out that in instructing on both offenses, the court used the same list of alleged Vehicle Code violations as possible unlawful acts. Contrary to defendant's argument, there is no unfairness in permitting the jury to base two "unlawful act" findings on the same underlying conduct.id: 15443
CALJIC 8.67, which requires the jury to make certain findings as a prerequisite to the imposition of an enhanced term under section 664 is not erroneous as applied to an aider and abettor.Defendant argued that one who aids and abets an attempted murder is not subject to the enhanced penalty provisions of former Penal Code section 664, subdivision (a), unless the jury finds that the aider and abettor personally premeditated the crime. However, the provision applied to aiders and abettors without regard to whether such persons personally harbored an intent to commit premeditated murder.id: 15310
Instructions required that jurors find one defendant harbored malice where two people were charged and it was unclear which one struck the child and which one aided and abetted.A seven month-old child, previously beaten, was punched and died of internal bleeding. The child's mother and her boyfriend were charged with murder and other offenses although it was unclear who struck the child. Defendants argued the jury instructions erroneously permitted them to be found guilty of murder without malice. The jury was instructed on the natural and probable consequences doctrine as it related to felony child endangerment. Defendants claimed the court erred by affirmatively instructing the jurors they did not have to agree unanimously, and by stating that each individual juror did not have to decide whether any given defendant was the perpetrator or aider and abettor. However, contrary to defendant's claim, the instructions did not permit the jury to find defendant guilty of murder without the necessary finding of malice. Moreover, the instructions were not improper for allowing the jury to apply the natural and probable consequences doctrine to the "crime" of felony child abuse rather than to any particular "act" of felony child abuse.id: 15313
The trial court did not err in failing to instruct with CALJIC 3.02 in felony-murder case where it instructed that the target offense was robbery and all elements of the target offense and aiding and abetting liability were fully described.In <i>People v. Prettyman</i> (1996) 14 Cal.4th 248, the court determined CALJIC 3.02 is the appropriate instruction to be given where the prosecution proceeds on the theory that the defendant aided and abetted a felony which resulted in a killing where the killing was a natural and probable consequence of the felony. Defendant argued the trial court prejudicially erred in failing to deliver CALJIC 3.02. However, the instructions given met all of the <i>Prettyman</i> requirements. The target offense was robbery. It was identified and all of the relevant elements of the target crime and aiding and abetting liability were fully described. There was no requirement that CALJIC 3.02 also be read to the jury.id: 15315
The court did not err in failing to instruct, sua sponte on excusable homicide where defendant denied committing any act which could be considered accidental.Defendant was convicted of second degree murder of a woman he was dating who drowned in his pool. He argued the court erred in failing to instruct sua sponte on excusable homicide under Penal Code section 195. However, under his theory of the case, he failed to prevent an accidental drowning. He did not accidentally cause her to enter the deep end of the pool and drown. The instruction on excusable homicide would have implied that some "accidental" conduct by defendant caused the victim to enter the deep end of the pool. The instruction was not required.id: 14860
The trial court had no sua sponte duty to instruct on lesser included offenses of first degree murder based on evidence of drug use where he was charged with derivative liability.Defendant argued the trial court erred in failing to instruct sua sponte on second degree murder, manslaughter, and battery as lesser included offenses of first degree murder given the evidence of his chronic drug use. However, defendant was charged with conspiring, soliciting, and aiding and abetting Hernandez in the murder. His criminal liability was thus derivative, for it depended on Hernandez' state of mind. Instructions on the lesser offenses were therefore not required.id: 10253
The trial court properly instructed on the lesser included offense of voluntary manslaughter, despite defendant's objection and willingness to gamble.Defendant was charged with murder. Evidence was presented from which the jury could have concluded defendant was guilty of voluntary manslaughter rather than murder. For tactical reasons he asked the court not to instruct on voluntary manslaughter but the request was denied. He was convicted of voluntary manslaughter. Despite a willingness to gamble a defendant may not deprive the jury of an opportunity to consider whether he or she is guilty of a lesser offense included in the crime charged. The court should instruct on any lesser included offense supported by the evidence regardless of the defendant's opposition. The court therefore acted properly when over defendant's objection, it instructed the jury on voluntary manslaughter.id: 10254
Trial court did not err in failing to instruct that the felony-murder theory did not apply if the sole purpose of the kidnapping was to assault the victim.Defendant argued the trial court erred in failing to instruct that the felony-murder theory did not apply if the sole purpose of the kidnapping was to assault the victim. However, the kidnapping was a felony not integral to the homicide and which involved no assault, so it was therefore proper to refuse the requested instruction pertaining to felony-murder. Moreover, kidnapping is independent of homicide. Even if kidnapping was an integral part of homicide it carries a separate felonious purpose of moving the victim without consent. Thus, the rule of <i>People v. Ireland</i> (1969) 70 Cal.2d 522, does not apply to kidnapping because it does not involve an assault which is the same conduct which constitutes the homicide.id: 10256
Trial court did not err in rejecting defendant's proposed instruction requiring his act be life-threatening rather than provocative for purposes of the provocative act theory of murder.Defendant walked onto the stage at a dance club and shot at the singer, who shot back with a gun of his own. One club patron was killed and others were injured. Defendant was convicted of several offenses including murder and attempted murder. The jury was instructed as to the elements of the provocative act theory of murder, upon which the prosecution relied. The trial court refused to give the instruction submitted by defendant which substituted the term life-threatening act for provocative act. While an opinion on the subject discussed a life-threatening act, the jury could not have been expected to know this. The jury properly found the material consequences of defendant's actions were dangerous to human life and sufficiently provocative that the singer in a reasonable response thereto killed the murder victim.id: 10257
Trial court did not err in refusing defendant's requested premeditation instruction highlighting factors such as motive, flight and physical inability.Defendant requested an instruction telling the jury that in deciding the issue of premeditation and deliberation, the jury may consider eight listed factors including motive, flight and physical disability. He argued the factors listed do not pinpoint a theory of defense, but instead, relate to evidentiary considerations. The court found that such matters could properly be addressed in argument without the aid of a special instruction such as the one defendant proposed.id: 10258
Trial court has no sua sponte duty to define reckless indifference to human life when instructing on a felony-murder special circumstance allegation against a defendant who is not the actual killer.A felony-murder special circumstance is applicable to a defendant who is not the actual killer if the defendant, either with the intent to kill, or with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests or assists in the commission of one of the eleven enumerated felonies in Penal Code section 190.1, subdivision (d). Because a common understanding of the phrase reckless indifference to human life amply conveys the meaning of section 190.2(d), a trial court is not required, in the absence of a request to further explain the statutory phrase to a jury.id: 10259
Use of the term sadistic purpose in instructions regarding murder by torture and the torture-murder special circumstance did not violate the Eighth Amendment.Defendant argued the standard instructions defining first degree murder by torture and the torture-murder special circumstance violated the Eighth Amendment because they used the term sadistic purpose which is too vague to provide guidance and could be used to describe any murder. However, it is a term in common usage having a relatively precise meaning, that is, the infliction of pain on another person for the purpose of experiencing pleasure. Moreover, there is no legal definition of the term. Because the instructions correctly stated the law in terms of common understanding, it is not reasonably likely the jury misunderstood the law regarding torture murder or the torture-murder special circumstance.id: 10261
Voluntary manslaughter instructions were inapplicable where defendant's motive for killing was bizarre and delusional but she clearly intended to kill without legal justification or excuse.The trial court did not err in refusing to instruct on voluntary manslaughter. The evidence of defendant's mental disease showed she intended to kill her children to save them from unspeakable acts at the hands of others. No theory applied to mitigate her intent to kill. The theory of sudden quarrel or heat of passion was inapplicable because defendant's subjective mental state could not be used to meet the objective element of sufficient provocation. Nor is there any evidence that defendant's children provoked her, and the requisite provocation must be from the victim. The <U>Flannel</U> theory of imperfect self-defense does not logically encompass the victim being killed so as to be saved from imminent death or great bodily injury. There is no justification or excuse that applies.id: 10264
Despite the instruction on provocation/manslaughter there was no evidence to support an instruction on provocation/second degree murder.Defendant argued the court erred in failing to instruct sua sponte, based on CALJIC 8.73, that the jury, in deciding whether defendant could be found guilty of second degree murder, would consider evidence of any provocation that played a part in inducing the homicide, even if that evidence was insufficient to reduce the offense to manslaughter. The court did instruct that provocation could reduce the offense to voluntary manslaughter. However, defendant did not rely on provocation (the defense was alibi) and the evidence did not support the theory. That the court instructed on provocation/manslaughter did not establish that evidence supported a provocation/second degree murder theory.id: 10221
Evidence did not support manslaughter instructions where the victim was shot twice in the back while clutching a light pole after refusing to have sex with defendantDefendant, who was convicted of second degree murder, argued the trial court had a sua sponte duty to instruct on the lesser included offenses of voluntary and involuntary manslaughter. However, voluntary manslaguther instructions were not necessary where there was no substantial evidence defendant acted sufficiently soon after the alleged provocation nor would a reasonable person develop homicidal rage and shoot another twice in the back for refusing to have sex after being provided with drugs. The evidence was likewise insufficient to support involuntary manslaughter instructions where she was forced into a car by several men and later shot twice in the back while grabbing a light pole and crying out, since these actions did not support a theory of an unintentional shooting.id: 10222
Evidence did not support heat of passion instruction where the victim attempted to intimidate the intoxicated and paranoid defendant.The trial court did not err in denying defendant's request for heat-of-passion voluntary manslaughter instructions. Evidence that the victim attempted to intimidate defendant is not sufficient to provoke a reasonable person to shoot someone. Moreover, defendant's intoxication or paranoia are conditions incompatible with the reasonable person standard.id: 10223
Implied malice instruction adequately informs the jury regarding defendant's subjective awareness or appreciation of risk created by his conduct.CALJIC 8.11, the standardized instruction defining implied malice, adequately informs the jury that implied malice requires a finding of the defendant's subjective awareness or appreciation of the life-threatening risk created by his conduct. The court noted, however, that while the wanton disregard for human life definition of implied malice independently conveys the subjective awareness requirement, it is a superfluous charge. The better practice is to instruct in the straightforward language of the second definition that malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.id: 10225
Implied malice instruction was not defective for discussing conscious disregard as opposed to wanton disregard.Defendant argued that CALJIC 8.11 and the conscious disregard definition of implied malice are defective because, unlike the wanton disregard definition, they fail to inform the jury that malice requires both a base, antisocial motive and a high probability that defendant's act will result in death. However, the subject matter of the assertedly omitted phrases is adequately covered in the conscious disregard instruction and the court did not err in using CALJIC 8.11.id: 10226
Implied malice instructions did not permit a conviction of second degree murder without finding that appellant subjectively appreciated the risk to burden life caused by her conduct.Appellant agreed that CALJIC 8.11 and 8.31 were erroneous because the language wanton disregard for human life permitted the jury to convict appellant of second degree murder without finding that she subjectively appreciated the risk to human life created by her conduct. The court held that while the language may be confusing the term wanton disregard is interchangeable with the alternative conscious disregard and absent improper argument on the subjective awareness of risk to human life, there was no error.id: 10227
Implied malice need not be defined with the phrase high probability of death as opposed to dangerous to human life.Appellant objected to the definition of implied malice for murder in CALJIC Nos. 8.11 and 8.31, which no longer refer to an act involving a high degree of probability that will result in death, but rather refer only to an act for which the natural consequences . . . are dangerous to human life. He asserted that implied malice requires an act involving a high probability of death and it is not enough that the act be merely dangerous to human life. The court found the phrases to be synonymous and the trial court did not err in instructing with CALJIC 8.11 and 8.31.id: 10228
Instruction on felony murder that was not charged in the information was not a denial of the sixth amendment right to notice of the charges.Appellant argued that because he was charged only under Penal Code section 187 (first degree murder) the court erred in instructing the jury on the theory of felony-murder (Penal Code section 189) and that such error deprived him of his sixth amendment rights by denying him notice of the charges against him. However, before trial began both attorneys discussed with the court the theory that appellant raped or attempted to rape the victim before the murder. This was not a case where the prosecutor was being deceptive or misleading and appellant could not have been surprised by the court's instructions on felony murder.id: 10231
Instruction on implied malice was not erroneous where defendant was tried as an aider and abettor.Defendant argued it was error to instruct on implied malice because his guilt as an aider and abettor required proof of specific intent. He claimed that aiding and abetting a murder required the specific intent to kill which cannot coexist with implied malice. However, the specific intent necessary for conviction of an aider and abettor in a murder is not the specific intent to kill, but the intent to encourage, and bring about conduct that is criminal. There is no tension between the court's instruction on implied malice and defendant's liability as an aider and abettor.id: 10232
Instructions given informed jurors that provocation could negate premeditation and deliberation that would reduce first degree murder to second degree murder.Defendant was convicted of one count of first degree murder and one count of second degree murder. He argued that as to the second victim the jury received no manslaughter instructions, no instructions on the distinction between murder and manslaughter, and no indication of what provocation could reduce a homicide to manslaughter. However, the jury was fully instructed on both degrees of murder, voluntary manslaughter, heat of passion and provocation, cooling period, and murder and manslaughter distinguished. Given the instructions the jury was not confused by CALJIC 8.73. The message was clear. If the jury believed there was legal provocation for the killing of the second victim they should consider the provocation on the issues of premeditation and deliberation.id: 10234
Instructions given informed the jury of the requirement that the tortuous acts were the proximate cause of victim's death.Defendant argued that while instructing the jury on murder by torture, the court erred in not instructing on the relationship of proximate cause to murder by torture. However, the jury was given the standard proximate cause instruction provided in CALJIC 8.55. There is no question that the instructions as a whole properly informed the jury of the requirement of finding that defendant's tortuous acts were the proximate cause of the victim's death.id: 10235
Instructions on involuntary manslaughter did not improperly require a showing of unconsciousness.Defendant who was heavily intoxicated at the time of the killing argued the instructions on involuntary manslaughter improperly required a showing of unconsciousness. However, unconsciousness was defined in CALJIC 4.30 which was given on excusable homicide due to involuntary unconsciousness. That instruction made clear that a person need not be incapable of movement to be unconscious. There is no reason to believe the jury would not have applied that definition of unconsciousness when considering CALJIC 8.47 on unconscious acts from voluntary intoxication.id: 10236
Instructions properly conveyed that attempted murder requires a specific intent to kill.The trial court in defining murder stated that malice may be express or implied and that implied malice does not require an intent to kill. Defendant argued the instructions may have misled the jurors into thinking that intent to kill was not an essential element of attempted murder. However, in light of the other properly delivered instructions, a reasonable juror would have understood the crime of attempted murder required express malice: namely, a specific intent to kill.id: 10237
Jury instructions on intent to kill were proper in a capital case.The jury was instructed that the crime of assault with intent to commit murder requires a specific intent to commit murder. Implied malice does not constitute this intent, but when a defendant is charged with murder as well as assault with intent to commit murder, a reasonable jury will not confuse the murder requirement of intent to kill with the assault requirement of intent to commit murder. The instructions properly informed the jury that they had to find the specific intent to commit murder on the latter offense, and that implied malice would be sufficient to do so.id: 10238
Jury may properly infer that the lying in wait and the subsequent murder were motivated by the same intent.Defendant attacked CALJIC 8.25 on the grounds that it does not inform the jury that they must find the lying in wait itself, as opposed to the murder, must have been done with the intention to murder or seriously injure and that the jury similarly is not informed that the lying in wait must be the means of the murder. However, absent evidence that the murderer entertained an intent while lying in wait to commit an act different than that which immediately thereafter resulted in victim's murder, the jury may properly infer that both acts were motivated by the same intent.id: 10239
Jury need not be instructed to consider defendant's intoxication in determining his specific intent to kill where evidence supports a finding of implied malice.Defendant was convicted of second degree murder. He argued the court erred in not instructing the jury, sua sponte, that if the evidence showed the defendant was intoxicated, the jury should consider that fact in determining whether defendant had a specific intent to kill. However, specific intent to kill is not a necessary element of second degree murder, nor is it necessary to establish murder. In the present case, defendant slew the victim with a knife stab to the head which penetrated the victim's skull and brain. The evidence supported a finding of implied malice and the jury was therefore properly instructed.id: 10240
Lying in wait instruction was not defective for failing to state that a substantial period of waiting time was required.Defendant was convicted of first degree murder. He argued the court erred in instructing with CALJIC 8.25 because the instruction does not accurately state the requirements for a jury to find murder by lying in wait since it omits the requirement that the waiting be for a substantial period. However, the instruction adequately informed the jury that the period of watching and waiting must be of sufficient duration to demonstrate the defendant's mental state equivalent to premeditation and deliberation.id: 10241
Manslaughter instructions based on Flannel defense were not required where the victim's hand movement came after accomplice pointed a rifle at him and shouted obscenities.Appellant argued the trial court erred in refusing to give voluntary manslaughter instructions and that such instructions are required when there is any evidence of honest but unreasonable self-defense. <i>(People v. Flannel)</i> (1979) 25 Cal.3d 668.) However, such instructions need only be given when supported by evidence that is substantial. Appellant relied on the testimony of an accomplice who testified they shot the victim only after he moved his right hand. However, if the victim made a hand movement it occurred <U>after</U> the accomplice pointed a rifle at him and shouted Fuck 36th. Under such circumstances the hand movement cannot be relied upon for a <i>Flannel</i> defense. The court properly refused the voluntary manslaughter instructions.id: 10243
Pleading and proof of the specific day of the child molestation is not required even where the defense is an alibi.There was evidence of a single act, and defendant was charged with a single count of lewd conduct on a minor with force. The evidence did not point to a particular day. Defendant's ability to raise an alibi defense was not impaired by the People's inability to plead and prove the alleged act occurred on a particular date. The court concluded it was unreasonable to require the pleading or proof of a specific day, even when defendant raises an alibi defense.id: 10244
Pre-1992 version of CALJIC 8.94 properly allows jury to find gross negligence from the overall circumstances of defendant's intoxication.Defendant challenged the pre-1992 version of CALJIC 8.94 which states that the fact that a defendant drives while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. This determination must be made from the overall circumstances of defendant's intoxication and the manner in which he drove. This version of CALJIC 8.94 correctly allowed the jury to find gross negligence from the overall circumstances of defendant's intoxication. While the instruction has been modified the court has made clear that it is not error to give the older version of the instruction.id: 10245
Provocation instruction that related evidence to an element of the crime was a pinpoint instruction and need not have been given sua sponte.Defendant argued the trial court committed reversible error in failing to instruct the jury it could consider provocation by the victim in determining whether the attempted murder was committed with premeditation and deliberation. However, such an instruction did not refer to a defense. Rather, it was an instruction that related certain evidence to an element of the crime and attempted to raise a reasonable doubt as to that element. Such an instruction is a pinpoint instruction, and as such, should not have been given sua sponte.id: 10246
Provocation is not a complete defense and the court had no sua sponte duty to instruct on the relationship between provocation and first and second degree murder.Defendant argued the trial court erred by not giving a sua sponte instruction on the relationship between provocation and first and second degree murder. However, provocation was not a complete defense but rather addressed the element of deliberate intent and resembled a pinpoint instruction. The trial court therefore had no sua sponte duty to instruct. Moreover, there was no evidence in the record to support provocation in any event.id: 10247
Proximate cause instruction was properly refused in felony-murder prosecution especially where it was inconsistent with the defense presented.Defendant argued the court erred in refusing to give his special instruction addressing proximate causation. However, a causal relationship between the charged felony, robbery in this case, and the killing of the victim is not required in a felony - murder prosecution, provided the killing and the robbery are part of a continuous transaction. Moreover, because defendant did not rely on the theory embodied in the requested instruction at trial and the instruction was inconsistent with the defense presented, the trial court's rejection was proper.id: 10248
That the prosecutor requested a heat of passion instruction for manslaughter did not establish that the evidence necessitated a sua sponte instruction on provocation.Defendant argued the trial court erred in failing to instruct on provocation sufficient to reduce first degree murder to second degree. However, there was no evidence of provocation, reasonable or unreasonable. The fact that the prosecutor requested a heat of passion instruction for manslaughter did not establish that the evidence would have necessitated a sua sponte instruction as these are commonly requested out of an abundance of caution.id: 10251
The decision to withhold antibiotics from the victim who then died was not an independent intervening cause as a matter of law and the court properly rejected defendant's proximate cause instruction.Defendant argued the trial court improperly rejected a special instruction on the proximate cause of the victim's death where the victim died following a medical decision to withhold antibiotics and the victim succumbed to bronchial pneumonia caused by head injuries. Defendant claimed the decision to withhold antibiotics was an independent intervening cause of death which shielded him from liability for homicide. However, the decision to withhold antibiotic treatment was not an independent intervening cause as a matter of law and the court was not required to instruct on the issue.id: 10252
Court adequately instructed the jury on the cooling off period as it related to the fear which assertedly caused the killing.Defendant was a battered woman who killed her husband while he slept. Defendant argued the trial court had a duty to instruct that there is no cooling off period when fear grows over time. She claimed that since her fear built up over a period of time, it could not have been subject to a cooling off period. However, the victim's assaults and threats occurred before he fell asleep. The instructions given <197> that heat of passion may be aroused by a series of events over a period of time <197> adequately dealt with the cooling off period as it related to the fear which assertedly caused the killing.id: 10189
Court did not err in defining gross negligence as an indifference to the consequences.Defendant was convicted of gross vehicular manslaughter while intoxicated. He argued the trial court erred in failing to instruct that gross negligence (an element of the crime) requires <U>conscious</U> indifference to the consequences of defendant's acts. The court did instruct as to the requirement of an indifference to the consequences. This was sufficient to define gross negligence. The word conscious would have added nothing to the meaning of indifference. Moreover, defendant failed to request the use of the word conscious.id: 10191
Court did not err in failing to instruct sua sponte on involuntary manslaughter following defendant's aggravated assault.The evidence of several thumps after the victim cried out for defendant to stop manifested an intentional act of striking. Without a showing of justification, defendant's violent attack was unlawful. Moreover, the attack amounted to a felony since a severe blow with a golf club is an assault with a deadly weapon or assault by means likely to produce great bodily injury or both. The killing during the commission of a dangerous felony provides no evidence of an act within the statutory definition of involuntary manslaughter. Accordingly, the failure to instruct on involuntary manslaughter was not error.id: 10192
Court did not err in failing to instruct that the medical treatment the victim received in prison after the assault was the supervening cause of death.Defendant argued the court erred when it refused to give his proposed instruction that if the medical care the victim received after the prison assault was so inadequate that it amounted to the sole cause of his death, then defendant was not the proximate cause of the victim's killing and was not liable for it. However, the record was devoid of any evidence of grossly improper medical treatment at the prison. Therefore, as a matter of law, the treatment regimen shown by the record failed to constitute a supervening cause of death and there was no error in refusing to deliver the modified instruction.id: 10193
Court did not err in failing to instruct on involuntary manslaughter where the record showed defendant knew of risks in physically abusing his stepson.Defendant was convicted of second degree murder in the death of his two year-old stepson. He argued the court erred in failing to instruct on the lesser included offense of involuntary manslaughter because the death was the result of his inexperience as a parent in handling children and not the product of his conscious disregard of the risk to the boy's life. However, the record established defendant had inflicted serious injury on the victim previously. The only possible inference the jury could draw from the evidence was that defendant knew and understood the probable consequences of his action.id: 10194
Court did not err by failing to instruct sua sponte on the effect of voluntary intoxication on the specific intent required for attempted voluntary manslaughter.The trial court did not have a sua sponte duty to charge the jury with an instruction that specifically related voluntary intoxication to the offense of attempted voluntary manslaughter where defendant did not request such an instruction and evidence of his intoxication was minimal and insubstantial.id: 10195
Court did not err in failing to instruct sua sponte that defendant may not have harbored malice because he was unconscious due to voluntary intoxication.Defendant was convicted of second degree drunk driving murder. He argued the court erred in failing to instruct sua sponte that he may not have harbored malice aforethought because the killing occurred when he was unconscious due to voluntary intoxication (CALJIC 8.47). He claimed the instruction was supported by evidence suggesting he was asleep at the wheel at the time of the collision. However, the court did give the requested instruction on the defense of unconsciousness generally (CALJIC 4.30). The jury was also properly instructed in the terms of CALJIC 4.21 to consider defendant's intoxication at the time of the crime. The court did not err in failing to instruct under CALJIC 8.47.id: 10196
Court did not err in failing to instruct that voluntary intoxication could negate express malice so as to reduce a murder to voluntary manslaughter.The trial court gave CALJIC 4.21 stating that voluntary intoxication could be considered in determining whether defendant had the specific intent to kill. Defendant argued the instructions were inadequate because they did not tell the jury that voluntary intoxication, like heat of passion upon adequate provocation, could negate express malice and reduce what would otherwise be murder to voluntary manslaughter. He also argued the court was required to instruct that intoxication could be considered in determining whether the killing was deliberate. However, the 1981 changes to the Penal Code abolished the diminished capacity defense and provided that evidence of voluntary intoxication or mental illness was limited to establishing whether an accused actually formed a specific intent required to commit a crime.id: 10197
Court did not err in failing to instruct on lesser offenses to section 288 where the murder conviction may have been based on a felony murder theory.Defendant argued his murder conviction - which, if decided on a theory of felony murder, required a conclusion that he violated or attempted to violate Penal Code section 288 - the court erred in failing to instruct on lesser included offenses of section 288, namely misdemeanor child molest under section 647(a) and contributing to the delinquency of a minor under section 272. However, there was no evidence that a lewd touching was absent but that all elements of section 647(a) (lewd conduct without touching) were present. Moreover, section 272 is not a lesser included offense to section 288 and no instruction was required.id: 10198
Court did not err in failing to instruct that manslaughter was a lesser included offense of second degree murder of a human fetus.Defendant was convicted of second degree murder of a human fetus pursuant to Penal Code section 187, subdivision (a). He argued the court erred in failing to instruct, sua sponte, on the lesser included offense of manslaughter. However, there exists no crime of manslaughter of a fetus. Moreover, section 187, as applied, was not unconstitutional as implied malice was evident from defendant's kicking and punching the pregnant victim along with his statements Fuck that baby and I'll kill you. To convict defendant of second degree murder it was not necessary for the jury to conclude he intended his acts to result in the death of a fetus. The facts showed the jury convicted defendant based on the evidentiary record, not on the absence of manslaughter instructions.id: 10199
Court did not err in giving lesser included offense instruction on second degree murder, over defendant's objection, where evidence supported the instruction.Defendant argued the trial court erred by instructing the jurors sua sponte on the lesser included offense of second degree murder. However, since the inferences to be drawn from the circumstantial evidence of a brutal beating and execution equally support either premeditated or unpremeditated killing, the trial court properly instructed the jury on the full range of possible verdicts supported by the evidence.id: 10200
Court did not err in instructing the jury that it could find gross negligence from the overall circumstances of defendant's intoxication.Defendant was convicted of gross vehicular manslaughter while intoxicated (Penal Code section 191.5, subd. (a). He argued the court erroneously instructed the jury that it could find gross negligence from the overall circumstances of his intoxication. (CALJIC 8.94). However, the finding of gross negligence required to convict a defendant of gross vehicular manslaughter while intoxicated may be based on the overall circumstances surrounding the fatality. Intoxication is one of those circumstances and its effect on the defendant's driving may show gross negligence. The jury could reasonably have found that defendant's high level of intoxication led to his reckless manner of driving and the challenged instruction was not erroneous.id: 10201
Court did not err in refusing to instruct on the lawful act theory of involuntary manslaughter where the facts only justified the instruction on misdemeanor-manslaughter.The trial court refused defendant's requested instruction on involuntary manslaughter. Although the court instructed on involuntary manslaughter on the theory of misdemeanor - manslaughter (brandishing a firearm as the misdemeanor), it refused a requested instruction on the so-called lawful act theory of involuntary manslaughter. However, if the jury found that defendant was the actual shooter, then defendant's possible acts were either that he brandished the firearm, without necessarily intending to shoot, or that he intentionally fired the weapon. Brandishing supports the misdemeanor-manslaughter theory of involuntary manslaughter, and that instruction was given. If defendant intentionally shot at the victim, he would be guilty of something greater than involuntary manslaughter.id: 10202
Court did not err in refusing to instruct on accessory after the fact as a lesser related offense to murder.Defendant argued the trial court erred in failing to instruct the jury on the offense of accessory after the fact as a lesser related offense to murder. However, the crime of accessory is distinct from the underlying crime. Although there is overlap between the statutory elements of the crime of murder and the crime of accessory, the offenses are not closely related for purposes of the lesser related offense instruction.id: 10203
Court did not err in refusing to instruct that intoxication can negate the mental state required for murder despite the evidence that defendant had been drinking.The trial court did not err in refusing to instruct that intoxication can negate the mental state required for first degree murder and the lesser included offense of voluntary manslaughter. The record did contain evidence defendant was under the influence of alcohol. However, the evidence fell short of a reasonable basis for concluding defendant's capacity to entertain the mental state required for murder was diminished.id: 10204
Court did not err in rejecting the modified instruction that would require the jury to consider inadequate provocation on the issue of degree of murder.Defendant argued the trial court erred in instructing the jury with CALJIC 8.73 rather than his modified instruction because, unlike his requested instruction, CALJIC 8.73 permits but fails to <U>require</U> the jury to consider inadequate provocation on the issue of the degree of murder. The issue is whether the provocation precluded defendant from deliberating. Giving CALJIC 8.73 was sufficient because a requirement that the jury find premeditation and deliberation necessarily includes a requirement that the jury consider the defendant's mental state. No more explicit instruction was required.id: 10205
Court had no obligation to instruct on attempted second degree murder.Defendant argued the trial court erred in failing to instruct sua sponte on attempted second degree murder and such failure misled the jury into believing that if it decided to convict him of attempted murder it had to convict him of an attempt to commit a willful, deliberate and premeditated murder. Initially, the law does not recognize the existence of attempted second degree murder. Moreover, the jury was told on several occasions that the special allegation of willful, deliberate and premeditated murder was only reached if and after the jury had found defendant guilty of attempted murder.id: 10210
Court had no sua sponte duty to instruct that the jury could consider defendant's voluntary intoxication in determining whether he had premeditated and deliberated the murder.Defendant argued the trial court erred in failing to instruct sua sponte that the jury should consider his voluntary intoxication in determining whether he had premeditated and deliberated the murder. However, where defendant is attempting to relate his evidence of intoxication to an element of the crime he is entitled to seek a pinpoint instruction, but the court has no duty to give the instruction sua sponte.id: 10211
Court properly instructed a finding of intent to kill was not necessary for felony-murder special circumstance where appellant was a major participant in the felony and acted with reckless indifference.Appellant argued the trial court erred in giving a modified version of CALJIC 3.41 relating to proximate cause and the special circumstance alleged. The court was faced with the situation wherein a person might have actually fired the fatal shot or might have participated in all major events, not as an aider and abettor, but as an actual participant who, if he did not fire the fatal shot, certainly was responsible for instigating the firing of the fatal shot. The trial court properly instructed that appellant's culpability fell within the range of persons established in <i>Tison v. Arizona</i> (1987) 481 U.S. 137, who do not need a separate finding of intent to kill, those persons ranging from the actual killer to a major participant in the felony who acts with reckless indifference to human life.id: 10214
Court's definition plainly stated that malice involves an element of viciousness and extreme indifference to human life.The trial court defined malice for the jury by reading CALJIC 8.11. When the jurors requested further definition the court instructed that malice is present when a defendant, free from mental impairment and not acting in heat of passion or on adequate provocation, makes a voluntary choice to commit a person - endangering act. Contrary to defendant's claim the instruction did not suggest one could be utterly unaware one's act was highly dangerous to human life and act with malice.id: 10216
Court's instruction that a killing is unlawful unless it is excusable or justifiable did not amount to a directed verdict.At defendant's murder trial, the court instructed the jury that a killing or the use of force or violence is unlawful unless it is excusable, i.e., committed by accident, or justifiable, i.e., committed in self-defense, and that the acts in the instant case were unlawful. Defendant argued the instruction amounted to a directed verdict as it failed to require the jury to find each element of the charged offense. However, the instruction did not relieve the prosecution's burden of proving all elements of the offense. It merely informed the jury that there was no issue regarding excuse or justification. Moreover, any error was harmless where defendant conceded the unlawfulness of the use of violence against the victims by express concession as well as by failing to raise excuse or justification in any manner.id: 10217
Defendant charged with murder is not entitled to a grand theft person instruction as a lesser included offense notwithstanding the robbery special circumstance allegation.A jury convicted defendant of first degree murder and found true a robbery special circumstance. Defendant argued the trial court erred in refusing to give a grand theft person instruction as a lesser included offense. However, defendant was charged only with murder, not robbery. The robbery special circumstance allegation had no effect on what offenses were included in the murder charge nor did reliance on a felony murder theory. The included offense doctrine applies only to charged offenses. Because grand theft person is not a lesser included offense of murder the court had no sua sponte duty to instruct on grand theft person. Moreover, the lesser <U>related</U> offense doctrine likewise did not mandate the requested instruction because grand theft person is not closely related to the charged offense of murder.id: 10218
A defendant is not entitled to a unanimous verdict as to which act constituted the underlying felony for purposes of felony murder.Defendant argued the court should have instructed sua sponte that the jurors need unanimously agree on the nature of the lewd or lascivious act he committed to find him guilty of felony murder. However, a defendant is not entitled to a unanimous verdict as to the particular manner in which a felony murder occurred.id: 10180
After the court tailored the instructions to felony murder, there was no prejudice in mentioning other forms of homicide.Since the court and counsel agreed that the case involved only felony murder, the court tailored the instructions to that theory. Defendant argued the court nevertheless confused matters by mentioning other forms of homicide in the instructions defining homicide and murder. However, the instructions, taken as a whole, clearly conveyed to the jury that first degree felony murder was the only type of homicide at issue in the case. There was no reasonable probability the jury would have been misled by the instructions.id: 10182
Aiding and abetting suicide instructions were not warranted where defendant played an active role in the strangulation.Defendant was convicted of second degree murder because he assisted a suicide by strangulation of a friend with the AIDS virus. He argued the court erred in denying his request on the lesser related offense of aiding and abetting a suicide pursuant to Penal Code section 401. However, the key to distinguishing between murder and assisting suicide is the active or passive role of the defendant. In the instant case, defendant helped tie the victim upside down. Although he applied no pressure to the ligature itself, he admitted his holding the victim to keep him from falling off the bed was designed to compete the act of strangulation. The evidence shows active assistance in the overt act of strangulation, and the requested instruction was not warranted.id: 10183
CALJIC 8.44 correctly allows fear to suffice for heat of passion without identifying heat of passion exclusively with fear.Defendant battered woman argued that CALJIC 8.44 should not have been given without modification, sua sponte, because it states that fear alone is insufficient for heat of passion. However, CALJIC 8.44 correctly allows fear to suffice for heat of passion without identifying heat of passion exclusively with fear.id: 10186
CALJIC 8.55 regrading proximate cause necessary for murder need not be given with respect to felony murder.Appellant argued the court erred because, in connection with the issue of felony murder, separate from the special circumstance, the court gave CALJIC 8.55 sua sponte. Appellant claimed the instruction allowed the jury to conclude presumptively, and erroneously, with regard to the special circumstance, that because appellant was a participant in the robbery, he was automatically guilty of the murder as the actual killer. With respect to felony murder the instruction need not have been given because there is no strict causal relationship between the felony and the homicide. However, the instruction was given prior to the instructions on special circumstance law. Moreover, any error could have benefitted appellant as the instruction could have erroneously restricted the necessary elements for first degree felony murder to the detriment of the People.id: 10187
CALJIC 8.94 properly instructs the jury to consider the circumstances of defendant's intoxication and/or the manner of driving in deciding whether defendant's conduct constituted gross negligence.Defendant was convicted of gross vehicular manslaughter while intoxicated. He challenged the legality of CALJIC 8.94 which tells the jury to consider the overall circumstances of a defendant's intoxication, the manner of driving, or both, in deciding whether the defendant's conduct constituted gross negligence. The court found that the heightened quality of recklessness and indifference must coincide with the specific underlying negligent conduct (driving while intoxicated and committing a traffic violation) and that it was entirely consistent with the crime described to tell the jury it can glean the gross negligence element from the overall circumstances of intoxication, manner of driving, or both.id: 10188
About Pat Ford
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.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
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