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F 8.30 n1 Unpremeditated Murder Of The Second Degree: Strong Evidence Of Premeditation Does Not Preclude Instruction On Second Degree As LIO.
If the record contains substantial evidence from which the jury reasonably could find that the defendant killed the victim without premeditation or deliberation, the jury should be instructed upon unpremeditated murder as a lesser offense of the first degree murder charge. (People v. Bradford (97) 15 C4th 1229, 1344-45 [65 CR2d 145].) Hence, even if strong evidence of premeditation has been presented, the jury must be given the alternative of second degree unpremeditated murder if the jury could reasonably conclude that the defendant might not have premeditated or deliberated. For example, in Bradford the victims had been lured to an isolated area and strangled by ligature. Nevertheless, the Supreme Court concluded that “[t]he record contained substantial evidence from which the jury reasonably could find the defendant killed [the victims] without premeditation or deliberation. Although defendant’s initiation of the offenses by luring the victims to the same isolated location exhibits considerable premeditation and deliberation, the nature of the murders themselves would not preclude a finding that defendant acted upon impulse. The circumstance that the manner of killing, ligature strangulation, might be somewhat more time-consuming than other methods, for example, firing a weapon, does not obviate the conclusion that defendant might not have premeditated or deliberated before killing the victims.” (Bradford, 15 C4th 1345.)
F 8.30 n2 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 8.30 failed to require perpetrator to have malice. (See CALJIC History CJ 8.30.)
F 8.30 n3 Second-Degree Murder Perpetrated By Shooting From Vehicle Is A Penalty Not A Substantive Crime.
Statute concerning second degree murder perpetrated by shooting from a vehicle (PC 190(d)) (formerly PC 190(c)), which makes shooting from a vehicle second degree murder, is a penalty, not a substantive crime. (People v. Garcia (98) 63 CA4th 820, 830-32 [73 CR2d 893].) However, the issue should be submitted to the trier of fact to decide whether the murder “was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.” (Ibid.) Error in failing to do so is judged under the rule of People v. Watson (56) 46 C2d 818 [299 P2d 243].
F 8.30a
Modification When Crime Involves Fetal Victim
*Modify CJ 8.30 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
