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Provocation Does Not Require Single Incident Qualifying As Provocation

 

CC 511 states that sufficient provocation may occur over a short period of time or over a long period of time. Thus, provocation may exist even though there was not a single incident qualifying as sufficient provocation. For example, malice may be negated by a long period of minor events, culminating in sufficient provocation. (People v. Le (2007) 158 Cal. App. 4th 516, 525; People v. Wharton (1991) 53 Cal. 3d 522, 569; People v. Berry (1976) 18 Cal. 3d 509; People v. Botchers (1958) 50 Cal. 2d 321.)

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Self Defense: Applicability When Defense Relies On Theory Of Accident

 

People v. Villanueva (2008) 169 Cal. App.4th 41, 51, disagreed with the Related Issues portion of CC 510. Contrary to CC’s interpretation, People v. Curtis (1994) 30 Cal. App. 4th 1337, 1358-1359, did not categorically foreclose self-defense instructions when a defendant claims a killing was accidental. (See also People v. Elize (1990) 71 Cal. App. 4th 605.)

 

So long as there is substantial evidence supporting a defense, on request of the defense, the court must give an instruction on that defense. (People v. Panah (2005) 35 Cal. 4th 395  [Defendant’s testimony that killing was accidental should not foreclose self-defense instructions if other substantial evidence supports a finding of self-defense].)

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Attempted Murder, Kill Zone

 

Attempted Murder: Aider And Abettor/Provocative Act And Mental State

 

A bracketed portion of CC 601 is provided when the defendant was not the actual killer which states:

 

[The attempted murder was done willfully and with deliberation and premeditation if either the defendant or <insert name or description of principal> or both of them acted with that state of mind.]

People v. Gonzalez (2012) 54 Cal. 4th 643, 661, held: “That sentence is a correct statement of the mental state requirements for an attempted murder committed by a defendant and an accomplice. When referred to in the context of defining a first degree provocative act murder, however, the sentence gives the incorrect impression that the defendant can be found to have acted with premeditation and deliberation if either the defendant or an accomplice harbored the mental state.” The bracketed portion should not be given if the theory of the case is that the defendant is guilty as an aider and abettor because of provocative acts. Moreover, the Gonzalez court stressed that if the defendant personally intends to kill and premeditates, the defendant is liable for first degree murder for each killing proximately caused by his or her acts. On the other hand, when malice is only implied from the defendant’s conduct, there is no first degree murder. (Id. at 661-662.)

 

Bottom line: “. . .[B]oth the instruction on attempted premeditated murder and first degree murder were correct. An aider and abettor can be found guilty of attempted premeditated murder based on the premeditation of her accomplice, but the same aider and abettor can be found guilty of first degree murder based on her provocative acts only if she premeditated and deliberated the death of the intended victim. The bracketed portion of the instruction discussed above should be given with a clarifying instruction that a defendant can be found guilty of both attempted premeditated murder and first degree provocative act murder if she did in fact premeditate and deliberate.” (Ibid.)

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Attempted Murder: Kill Zone Language

 

People v. Campos (2007) 156 Cal. App. 4th 1228, 1243, upheld instructing the jury with the “kill zone” option of CC 600. However, the Campos court observed that when a jury is instructed on the intent to murder the person whose attempted murder is charged and on express malice, the “kill zone” option is superfluous. Campos concluded that the “kill zone” theory “is not a legal doctrine requiring special jury instructions. It is a reasonable inference the jury may draw in a given case.” (Ibid.)

 

Campos also noted an ambiguity in the “kill zone” option for CC 600. Although the concluding sentence of the “kill zone” instruction refers to harm “everyone in the kill zone,” the preceding sentence speaks of an intent “to kill anyone within the kill zone.” (Ibid.)

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Felony Murder: One Continuous Transaction–Defined

 

People v. Wilkins (2013) 56 Cal. 4th 333, 342, noted that the Bench Notes for CC 3261 maintain that an instruction on the “escape rule” should not be given in a case involving felony murder. However, in a felony murder case where the facts warranted it, the court must instruct the jury under CC No. 3261 that the felony continues only until the perpetrator has reached a place of temporary safety. (Id. at 343-344.)

 

The CC Committee responded in July, 2013, by deleting CC 549 in its entirety. It added a bench note in CC 540B and C, and CC 541B and C, to consult Cavitt and the discussion of Cavitt in Wilkins “[i]f the defendant was a nonkiller who fled, leaving behind an accomplice who killed.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013, at p. 3, referring to People v. Cavitt (2004) 33 Cal. 4th 187, and People v. Wilkins (2013) 56 Cal. 4th 333, 344.)

 

The committee explained the revisions as follows: “Wilkins held it was error to give [CC 549] on the ‘One Continuous Transaction’ rule in a felony murder case when the defendant had been away from the scene of the crime for hours before the homicide took place.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 2.. . .[¶].) “In discussing the ‘One Continuous Transaction’ rule the court limited the application of People v. Cavitt. [] That case found that it was not error to instruct on ‘One Continuous Transaction’ in the unusual circumstances of that case. [] It stands to reason, however, that Cavitt’s limited holding on unusual facts was never meant to be the basis for standard jury instructions on felony murder, although the original Task Force on Criminal Jury Instructions mistakenly interpreted it that way.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 2, referring to People v. Cavitt (2004) 33 Cal. 4th 187.) As described by the Committee, in Cavitt, “Three defendants plan to commit a burglary in the home of one defendant’s stepmother. The stepdaughter pretends to be a crime victim. Both ‘victims’ are bound and left on a bed. The stepmother is alive when the other two defendants flee, but she dies later, either from suffocation due to her bonds, or due to subsequent, deliberate acts by the stepdaughter.” (Advisory Committee on Criminal Jury Instructions report, supra, at pp. 2-3, fn. 4.)

 

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Felony Murder: Applicability of Duress to Underlying Felony

 

When a murder is based on a felony murder theory, the court has a sua sponte duty to give a duress defense instruction (CC 3402) if the defendant claims that he or she committed the underlying felony under duress. (CC 3402 Bench Notes.)  However, if the defendant formed the intent to be an aider and abettor to the underlying felony before there was any coercion, then it is not necessary to give the instruction. (People v. Fiore (2014) 227 Cal. App. 4th 1362.)

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Act Causing Death Not Distinct from Underlying Felony

 

On April 23, 2010, CC 540A, as well as CC 540B and CC 540C, were revised. As explained by the CC Committee, it was pointed out to them that the first degree felony murder instructions refer to the “act causing death” as though it were distinct from the underlying felony and this could be misleading when the act causing death and the underlying felony are the same, as in arson cases. The Committee hence “made the necessary revisions throughout these instructions to eliminate potential references to a separate ‘act.’”

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Definition of Deadly Weapon Corrected

 

People v. Brown (2012) 210 Cal. App. 4th 1, 4, considered weapons such as BB guns, and noted that CC 375’s definition of a “deadly weapon,” “which includes objects that are inherently ‘dangerous’ as well as inherently ‘deadly,’ is, at best, ambiguous and, at worst, overbroad.” “[CC 875] may impermissibly allow a jury to convict a defendant of assault with a deadly weapon if it finds the weapon employed was inherently dangerous, even if it rejects the notion that the instrument was inherently deadly or used in a manner capable of causing and likely to cause death or great bodily injury. That possibility, however theoretical it may be in most cases, should be obviated by an appropriate modification of the language in [CC 875].” (Id. at 11.)

 

In response to the Court of Appeal in Brown, the CC Committee revised CC 875, as well as other CC instructions which contained the definition of a deadly weapon, to delete the word “dangerous.” The CC Committee explained, “In People v. Brown (2012) 210 Cal. App.4th 1, the Court of Appeal for the Second Appellate District found fault with the definition of deadly weapon in [CC 875] and [CC 3145] because it contained a superfluous reference to the weapon also being “dangerous.” In response to that opinion, the advisory committee proposes deleting that word from [CC 875], bracketing as optional in [CC 3145], as well as deleting the word from seven other instructions, [CC 860], [CC 862], [CC 863],[CC 982], [CC 983], [CC 2503], and [CC 3130]. [¶] With the proposed revisions, the definition returns to the original language that the committee first circulated for public comment in 2004, based on the language of People v. Aguilar (1997) 16 Cal. 4th 1023, 1028-29.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 26, 2013, p. 3.)

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Assault Instruction May Confuse Jurors in Multiple Victim Situations

“Element No. 1 of [CC 875] requires that the prosecution prove that ‘The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person.’ But Element 2 merely requires that ‘When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.’”(People v. Velasquez (2012) 211 Cal. App. 4th 1170.)

 

As the Velasquez court observed, “[T]he potential for jury confusion is obvious. One cannot assault John Doe, when the defendant aimed at Tom Smith, if John Doe was standing hundreds of feet behind the defendant when the defendant shot the firearm (assuming the defendant’s aim was reasonably accurate, but did not result in injury to Tom Smith). Tom Smith was the victim of an assault because the act in this hypothetical would directly and probably result in application of force to him. But John Doe, who was hundreds of feet away in the opposite direction, unthreatened and unharmed, was not a victim of assault because the defendant did not commit an act that by its nature would directly and probably result in application of force to John Doe.” (Ibid.) 

 

Accordingly, the reviewing court reversed the defendant’s multiple convictions with a firearm.

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Definition of Balcony

 

People v. Yarborough (2012) 54 Cal. 4th 889, 894, expressly disapproved its dictum in People v. Valencia (2002) 28 Cal. 4th 1, 11, and held that “Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building and the balcony is designed to be entered only from inside the apartment (thus extending the apartment’s living space), the balcony is part of the apartment. The railing of such a balcony marks the apartment’s “outer boundary”. . .any slight crossing of which is an entry for purposes of the burglary statute.” (Id. at 894.)

 

An attached balcony designed to be entered only from inside of a private, residential apartment on the second or higher floor of a building is inside a building’s outer boundary.