SERIES 500 HOMICIDE
F 540A NOTES
TABLE OF CONTENTS
F 540A Note 1 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act— CALCRIM Cross References And Research Notes
F 540A Note 2 Felony Murder: Rape Victim Must Be Alive (PC 189)
F 540A Note 3 Felony Murder: Court Must Instruct On Misdemeanor As LIO Of Burglary (PC 189)
F 540A Note 4 Felony Murder: Failure To Request Lesser Related Misdemeanor As IAC (PC 189)
F 540A Note 5 Instruction Upon Felony Murder Improper Unless Charged (PC 189)
F 540A Note 6 Duty To Instruct On Termination Of Underlying Felony (PC 189)
F 540A Note 7 Felony Murder: Sua Sponte Duty To Instruct Upon Defenses, Etc. When Underlying Felony Is Not Substantively Charged (PC 189)
F 540A Note 8 Felony Murder: “Drive-By” Murder (PC 189)
F 540A Note 9 Felony Murder: No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged (PC 189)
F 540A Note 10 Reduction Of Degree
F 540A Note 11 Felony Murder Requirement That Jury Be Instructed On Lesser-Included Offense Of The Underlying Felony
F 540A Note 12 Felony Murder: Double Jeopardy Violated By Reliance On Predicate Felony For Which Prior Juvenile Conviction Had Previously Been Returned
F 540A Note 13 Felony Murder: Intent To Steal Upon Entry Does Not Make Homicide And Burglary One Continuous Transaction
F 540A Note 14 Felony Murder: Intent To Commit Misdemeanor Not Sufficient (PC 189)
F 540A Note 15 Felony Murder May Not Be Predicated On Intent To Evade Police Officer Resulting In Great Bodily Injury (GBI) (VC 2800.3)
F 540A Note 16 Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
F 540A Note 17 Felony Murder: Temporary Safety By Some, But Not All, Perpetrators
F 540A Note 18 Felony Murder: Independent Animus
F 540A Note 19 Felony Murder: Conspiracy as Lesser Included Offense
F 540A Note 20 Felony Murder: Propriety of Instruction On Uncharged Lesser-Included Of Predicate Felony
F 540A Note 21 Felony Murder: Unpremeditated Second Degree Murder As Lesser-Included Offense
F 540A Note 22 Arson Felony Murder: PC 453 As Lesser Included
F 540A Note 23 Felony Murder: Proposition 115 Due Process/Ex Post Facto Issues: “Yoshiato Window” (PC 189)
F 540A Note 24 Merger As A Question For The Jury Per Apprendi
Return to Series 500 Table of Contents.
F 540A Note 1 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 540B [Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act]
CALCRIM 540C [Felony Murder: First Degree—Other Acts Allegedly Caused Death]
CALCRIM 541A [Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act]
CALCRIM 541B [Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act]
CALCRIM 541C [Felony Murder: Second Degree—Other Acts Allegedly Caused Death]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 540A Note 2 Felony Murder: Rape Victim Must Be Alive (PC 189)
Felony murder may not be predicated upon a charge of rape unless the victim was alive at the time intercourse occurred. (See FORECITE F 10.00a.) However, such conduct, if coupled with a reasonable belief that the victim was alive, may constitute attempted rape which is a predicate to felony murder liability. (People v. Thompson (1993) 12 CA4th 195, 203; see also People v. San Nicolas (2004) 34 C4th 614, 661 [mistaken belief that victim is alive warrants conviction of attempt to commit the underlying felony]; People v. Kelly (1992) 1 C4th 495, 524-28.)
(See also FORECITE F 10.00a [Rape: Requirement That Victim Be Alive (PC 261)].)
NOTES
Good Faith Belief That Victim Was Dead. (See FORECITE F 10.00e.)
[Research Note: See FORECITE BIBLIO 8.21.]
CALJIC NOTE: See FORECITE F 8.21 n1.
F 540A Note 3 Felony Murder: Court Must Instruct On Misdemeanor As LIO Of Burglary (PC 189)
When burglary is predicated upon an intent to commit an offense for which there is a lesser included misdemeanor, failure to instruct upon the misdemeanor (except theft) may be reversible error because burglary requires an intent to commit a felony or theft. (PC 459; e.g., People v. Peters UNPUBLISHED (C008103) [burglary conviction reversed for failure to instruct on misdemeanor false imprisonment as a lesser included offense of felony false imprisonment].) [See Opinion Bank # O-110 for the Peters opinion.]
[Research Note: See FORECITE BIBLIO 8.21.]
CALJIC NOTE: See FORECITE F 8.21 n2.
F 540A Note 4 Felony Murder: Failure To Request Lesser Related Misdemeanor As IAC (PC 189)
In felony murder cases counsel should be alert to lesser included or related misdemeanors. (See e.g., People v. Morris/In re Morris UNPUBLISHED (E008083 / E008775) [failure to request instruction on joy riding and vehicle theft as lesser offense related to robbery was IAC].) [See Opinion Bank # O-102 for the Morris opinion.]
[See also FORECITE F 540A n11.]
[Research Note: See FORECITE BIBLIO 8.21.]
CALJIC NOTE: See FORECITE F 8.21 n3.
F 540A Note 5 Instruction Upon Felony Murder Improper Unless Charged (PC 189)
ALERT # 1: To avoid waiving this issue, it may be necessary to formally ask to reopen the case to present defense evidence when the uncharged theory is advanced. (See People v. Memro (1995) 11 C4th 786, 869; see also People v. Silva (2001) 25 C4th 345, 368.)
ALERT # 2: The rationale of cases such as Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348], Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428] and Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531] provide a basis for arguing that felony murder must be charged since it is a factual element which potentially increases the criminal liability of the accused. (See generally FORECITE PG VII(C)(32).) This argument was rejected in People v. Nakahara (2003) 30 C4th 705 but may still be viable in federal court on habeas corpus or certiorari. (See also FORECITE PG VII(C)(11.1).)
Prior to 1983, the cases consistently held that a charge of murder under PC 187 necessarily included a charge of felony murder under PC 189 because PC 189 simply created a presumption of the malice element of PC 187. (See People v. Witt (1915) 170 C 104, 107-08; see also In re Walker (1974) 10 C3d 764, 781.)
However, in People v. Dillon (1983) 34 C3d 441, 476, fn 3, the Supreme Court determined that malice murder under PC 187 and felony murder under PC 189 are not the “same crimes.“ Accordingly, because the accusatory pleading “must contain … [a] statement of the public offense or offenses charged therein“ (PC 950), it would seem that Dillon requires specific pleading of felony murder under PC 189.
Nor is the decision of People v. Watkins (1987) 195 CA3d 258, 267, persuasive authority to the contrary. Watkins fails to recognize and discuss the interrelationship between the presumption of malice and Witt’s conclusion that the pleading need not specify PC 189. Further, Watkins erroneously concluded that Dillon “ interprets rather than reinterprets §189 and therefore should not be read to change the [Witt rule].“ (Watkins at 267.) This is not an accurate characterization of Dillon. Dillon expressly contradicted Witt to the extent that it concluded that malice is an element of murder. The Dillon court attributed an entirely new meaning to PC 189—it interpreted the statute as a codification of the felony murder rule. (Dillon, at 465.) Hence, Watkins’ conclusion that Witt is still good law should not be followed.
Moreover, the failure to charge felony murder violates the defendant’s federal constitutional rights (6th and 14th Amendments) to notice and due process. (See also Calif. Constitution, Art. III, §15; PC 950.) The failure to charge felony murder was found to be a prejudicial 6th Amendment violation in Sheppard v. Rees (9th Cir. 1990) 909 F2d 1234.
The California courts of appeal have not followed Sheppard for two reasons. First, they have found Sheppard “difficult to square“ with People v. Murtishaw (1981) 29 C3d 733, 750-52. Second, the California courts of appeal have distinguished Sheppard on its facts because the defendant A could not have been misled and, therefore, there was no 6th Amendment violation. (See People v. Gallego (1990) 52 C3d 115, 188-89; People v. Scott (1991) 229 CA3d 707, 716-18; People v. Crawford (1990) 224 CA3d 1, 7-9; but see People v. Ricks DEPUBLISHED (1988) 198 CA3d 1266; see also, Stephens v. Borg (9th Cir. 1995) 59 F3d 932 [distinguishing Sheppard v. Rees]; Morrison v. Estelle (9th Cir. 1992) 981 F2d 425 [distinguishing Sheppard on the basis of actual notice]; see also, Calderon v. Prunty (9th Cir. 1995) 59 F3d 1005 [dismissal of lying-in-wait special circumstance for insufficient evidence does not preclude use of lying-in-wait theory for first degree murder].)
However, these cases do not necessarily preclude application of Sheppard in an appropriate case. First, Murtishaw predated Dillon, which first held that felony murder is a separate and distinct offense. Therefore, neither Murtishaw nor People v. Thomas (1987) 43 C3d 818, 829, fn 5C which failed to address the argument advanced in Sheppard and which rely on cases predating Dillon—may be relied upon for the proposition that the Supreme Court has rejected the argument that Dillon created a new form of murder which must be separately charged. (Gallego cited Sheppard but did not discuss Dillon.)
Second, implicit in the California cases is the assumption that if the defendant is misled by the failure to charge felony murder then constitutional principles may be implicated. Accordingly, if it can be established that the felony murder instruction was a new theory which was unexpected by the defense and resulted in the inability of the defense to adequately defend against the charge, then a viable constitutional challenge may be made.
People v. Johnson (1991) 233 CA3d 425, 453-57, the only case to consider the impact of Dillon, concluded that felony murder and malice murder are really not “two kinds of first degree murder.“ In so doing, however, the Johnson court erroneously concluded that Dillon (34 C3d at 476, fn 23) was merely answering the defendant’s “narrow equal protection“ argument when it concluded that felony murder and malice murder contain different elements. This is a misreading of Dillon. In point of fact, the court’s recognition that there are “two kinds“ of first degree murder was an essential underpinning of Dillon. (See People v. Saille (1991) 54 C3d 1103, 1116, recognizing that Dillon deleted malice as an element of “the crime of felony murder.“ [Emphasis added].) Absent such an interpretation the felony murder rule would unconstitutionally presume the malice element of murder. (See Dillon at 475-76; see also People v. Bobo (1990) 229 CA3d 1417, 1442 [legislature can limit the statutory definition of a crime and thereby curtail use of mens rea defenses]; see also Roth & Sundby, The Felony Murder Rule: A Doctrine of Constitutional Crossroads (1985) 70 Cornell L. Review, 446, 470, fn 145; but see FORECITE F 4.21 n11.) Hence, the reference in Dillon at fn 23 to two kinds of murder, “[a]s shown above,“ is not limited to the narrow equal protection argument as concluded in Johnson but refers to the due process analysis at pp. 475-76 where the Supreme Court concluded that malice is not an element of felony murder. (See also FORECITE F 17.01 n5; People v. Ricks DEPUBLISHED (1988) 198 CA3d 1266.)
In sum, despite the purported disapproval of Sheppard by several California courts of appeal, the due process underpinnings of Sheppard have not been persuasively challenged. In the appropriate case a due process challenge to instruction on felony murder should be made based upon the failure to charge felony murder as a separate offense. (See also Alford v. State (1995) 906 P2d 714 [111 Nev. 1409] [“It was simply not fair for the prosecution to bring in charges of felony-murder after the close of the case“ ].)
PRACTICE NOTE: The lack of notice in the Sheppard case was held to be prejudicial in large part due to the record made by trial counsel below indicating that the felony murder instruction was a new theory which was unexpected by the defense resulting in the inability of the defense to adequately defend against the charge. Counsel should take advantage of every opportunity to place in the record his surprise at the new theory and the manner in which it impairs his ability to defend against the charges.
[Research Note: See FORECITE BIBLIO 8.21.]
CALJIC NOTE: See FORECITE F 8.21 n5.
F 540A Note 6 Duty To Instruct On Termination Of Underlying Felony (PC 189)
Felony murder does not apply unless the underlying felony and the killing are part of “a continuous transaction.“ (People v. Thompson (1990) 50 C3d 134, 171.) While a robbery remains in progress for purposes of the felony murder rule until the perpetrator has reached a place of temporary safety (see FORECITE F 730.2 Inst 6 and FORECITE F 8.21.1b), for other crimes such as kidnapping and sex crimes the felony is complete when the victim is no longer detained (see FORECITE F 730.2 Inst 6). (See also People v. Castro (1994) 27 CA4th 578, 586.)
Therefore, when the evidence may be interpreted to conclude that the underlying felony had ended before the killing occurred, the trial court is under a sua sponte obligation to instruct the jury as to when the underlying felony ends and that murder may not be predicated upon the killing which occurs after the felony has ended. (See People v. Pearch (1991) 229 CA3d 1282, 1299.)
In robbery and burglary the felony and killing are part of “a continuous transaction“ unless the defendant has reached “a place of temporary safety.“ (See People v. Haynes (1998) 61 CA4th 1282, 1292 [temporary safety basis for termination of robbery may be measured by victim safety, robber safety, robber’s common purpose and motive, or the indivisible or continuous nature of the transaction]; see also People v. Thongvilay (1998) 62 CA4th 71 [felony murder doctrine applies when defendants cause death while driving away after committing a burglary]; People v. Salas (1972) 7 C3d 812, 822-24; People v. Fuller (1978) 86 CA3d 618, 623 [burglary]; People v. Bodely (1995) 32 CA4th 311.) The only CALJIC discussion of temporary safety is in CJ 8.21.1. (See FORECITE F 8.21.1 et al.)
RESEARCH NOTE: See Annotation, What constitutes termination of felony for purpose of felony-murder rule, 58 ALR3d 851 and Later Case Service.
[Research Note: See FORECITE BIBLIO 8.21.]
CALJIC NOTE: See FORECITE F 8.21 n6.
F 540A Note 7 Felony Murder: Sua Sponte Duty To Instruct Upon Defenses, Etc. When Underlying Felony Is Not Substantively Charged (PC 189)
When a defendant is charged with a felony-murder special circumstance but not the substantive felony, the court has a sua sponte duty to instruct “as to the necessity for the concurrence of act and intent, or the availability of the defenses of diminished capacity and voluntary intoxication for the underlying felony.“ (People v. Mickey (1991) 54 C3d 612, 675-77.) The same reasoning should apply to non-special circumstance felony murder.
[Research Note: See FORECITE BIBLIO 8.21.]
CALJIC NOTE: See FORECITE F 8.21 n7.
F 540A Note 8 Felony Murder: “Drive-By“ Murder (PC 189)
(See FORECITE F 721 n25.)
CALJIC NOTE: See FORECITE F 8.21 n8.
F 540A Note 9 Felony Murder: No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged (PC 189)
In People v. Miller (1994) 28 CA4th 522, 526-27, the court held that there was no error in refusing to instruct upon request on a lesser included offense of a felony which was the basis of a felony murder and special circumstance allegation but was not separately charged. The court relied upon PC 1159 to conclude that the included offense doctrine applies only to charged offenses. This result raises several federal constitutional issues.
First, the failure to instruct upon lesser included offenses may implicate federal due process and, in capital cases, also the 8th Amendment (see FORECITE PG VII(C)(13).)
Second, in a non-capital case, the defendant’s federal constitutional rights (due process, to present a defense, compulsory process and a fair jury trialC 6th and 14th Amendments) are abridged when rejection of a requested lesser instruction prevents presentation of a defense theory to the jury. (See Bashor v. Risley (9th Cir. 1984) 730 F2d 1228, 1240.)
Third, apart from any federal constitutional right to instruction on lesser offenses, the prosecution should not be able to arbitrarily deny the defendant’s state created right to lesser offense instructions by use of “artful pleading.“ (See Miller, 28 CA4th at 531-32, dissenting opinion.) Arbitrary denial of a state created right implicates due process (U.S. Const., 14th Amendment.) (See FORECITE PG VII(C)(17).)
The dissent argued that the prosecution cannot deny the defendant, through “artful pleading,“ the due process right to avoid “all or nothing“ jury choices when some version of the evidence will support conviction of a lesser offense. (Miller, 28 CA4th at 528-32 citing People v. Geiger (1984) 35 C3d 510; see also People v. Peters UNPUBLISHED (C008103) [court has obligation to give instructions on LIOs when the evidence raises a question as to whether all of the elements of the charged offense are present; jury given an “all or nothing“ choice when there was evidence from which they could have found the lesser charge].)
[Research Note: See FORECITE BIBLIO 8.21.]
CALJIC NOTE: See FORECITE F 8.21 n10.
F 540A Note 10 Reduction Of Degree
[See FORECITE LIO V(B).]
F 540A Note 11 Felony Murder Requirement That Jury Be Instructed On Lesser-Included Offense Of The Underlying Felony
In Villafuerte v. Stewart (9th Cir. 1997) 111 F3d 616, the Ninth Circuit held that the jury should have been instructed on a lesser-included offense of the felony underlying the felony murder charge [i.e., false imprisonment as lesser offense of kidnapping]. (However, the error did not require reversal because under the circumstances the jurors were not required to find the defendant guilty of murder if they found him guilty of kidnapping.) (See also FORECITE F 725 n3 [Failure To Request Lesser-related Misdemeanor To Underlying Offense As Ineffective Assistance of Counsel (IAC)].)
CALJIC NOTE: See FORECITE F 8.21 n12.
F 540A Note 11 Felony Murder: Double Jeopardy Violated By Reliance On Predicate Felony For Which Prior Juvenile Conviction Had Previously Been Returned
(See Ficklin v. Hatcher (9th Cir. 1999) 177 F3d 1147.)
CALJIC NOTE: See FORECITE F 8.21 n13.
F 540A Note 13 Felony Murder: Intent To Steal Upon Entry Does Not Make Homicide And Burglary One Continuous Transaction
In People v. Sakarias (2000) 22 C4th 596, the trial court told the jurors that if they found that the defendant entered the premises with the intent to steal, the homicide and burglary were part of one continuous transaction for purposes of the felony murder rule. The appellate court held that it is for the jury to decide whether the existence of a single transaction was proven beyond a reasonable doubt and that the trial court’s instruction removed that factual issue from the jury’s consideration. (Ibid.)
CALJIC NOTE: See FORECITE F 8.21 n14.
F 540A Note 14 Felony Murder: Intent To Commit Misdemeanor Not Sufficient (PC 189)
A conviction under the felony-murder doctrine requires proof the defendant acted with the specific intent to commit the underlying felony, even if the underlying felony does not itself require specific intent. (People v. Hart (1999) 20 C4th 546, 608 [rape]; People v. Hernandez (1998) 47 C3d 315, 346 [rape and sodomy]; People v. Sears (1965) 62 C2d 737, 744 [mayhem]; see also FORECITE F 8.21i.) Hence, if the defendant only intended to commit a misdemeanor, the felony murder rule does not apply. (See e.g., People v. Jones (2000) 82 CA4th 663, 669-70 [intent to evade a police officer (VC 2800.1) insufficient].)
CALJIC NOTE: See FORECITE F 8.21 n15.
F 540A Note 15 Felony Murder May Not Be Predicated On Intent To Evade Police Officer Resulting In Great Bodily Injury (GBI) (VC 2800.3)
See FORECITE F 8.32 n9.
F 540A Note 16 Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
See FORECITE F 540A.6 Inst 5.
F 540A Note 17 Felony Murder: Temporary Safety By Some, But Not All, Perpetrators
(See People v. Cavitt (2004) 33 C4th 187, 209 [suggesting that under the escape rule, a felony continues as long as any one of the perpetrators retains control over the victim or is in flight from the crime scene, but not resolving the issue].)
CALJIC NOTE: See FORECITE F 8.21 n19.
F 540A Note 18 Felony Murder: Independent Animus
See FORECITE F 8.27c.
F 540A Note 19 Felony Murder: Conspiracy as Lesser-Included Offense
(See People v. Nguyen DEPUBLISHED (2003) 111 CA4th 184 [When the prosecution relies on a conspiracy theory to establish liability for the underlying felony, conspiracy becomes a lesser-included offense of felony murder and the jury must be given the option of returning a conspiracy verdict if there is substantial evidence of withdrawal from the conspiracy prior to the killing].)
CALJIC NOTE: See FORECITE F 8.21 n21.
F 540A Note 20 Felony Murder: Propriety of Instruction On Uncharged Lesser-Included Offense Of Predicate Felony
The duty of the trial court to instruct on its own initiative on lesser-included offenses of charged offenses, this duty does not extend to uncharged offenses relevant only as predicate offenses under the felony-murder doctrine. (People v. Seaton (2001) 26 C4th 598, 670; People v. Silva (2001) 25 C4th 345, 371; People v. Miller (1994) 28 CA4th 522, 526-527.)
However, when commission of lesser offense is a theory of the defense upon which instruction is requested, explanation of the lesser offenses to the predicate felony may be necessary. (See e.g., Seaton, 26 C4th at 670 [“trial court defined the crime of theft and told the jury that if defendant decided to take [the victim’s] property after killing him, he was guilty of theft, not robbery, and he thus could not be convicted of felony murder on the theory that he killed in the commission of a robbery.“ ].)
CALJIC NOTE: See FORECITE F 8.21 n22.
F 540A Note 21 Felony Murder: Unpremeditated Second Degree Murder As Lesser-Included Offense
(See People v. Valdez (2004) 32 C4th 73 [trial court’s failure to instruct on first and second degree murder as lesser-included offense of felony murder did not deny due process because there was no substantial evidence that the killing was other than robbery murder. But see Chin dissent, with Kennard and Brown].)
CALJIC NOTE: See FORECITE F 8.21 n23.
F 540A Note 22 Arson Felony Murder: PC 453 As Lesser-Included Offense
If the evidence provides a basis for instruction on PC 452 as a lesser-included offense of arson (PC 451), then the jury should be instructed that felony murder is inapplicable if the crime was a violation of PC 452 rather than arson. (Cf. People v. Cole (2004) 33 C4th 1158, 1218-19; see also FORECITE F 725 n2.)
CALJIC NOTE: See FORECITE F 8.21 n24.
F 540A Note 23 Felony Murder: Proposition 115 Due Process/Ex Post Facto Issues: “Yoshiato Window“ (PC 189)
Prior to June 6, 1990, felony murder under PC 189 could not be predicated upon kidnapping (PC 207), kidnapping for robbery (PC 209), or sex crimes other than rape or PC 288 violations. However, Proposition 115 amended PC 189 to add PC 207 and PC 209 kidnapping as well as train wrecking and the sex crimes defined in PC 286 and PC 289.
Therefore, at a minimum, for killing committed prior to June 6, 1990 ex post facto principles preclude predicating felony murder upon any of the crimes added by Proposition 115. (Tapia v. Superior Court (1991) 53 C3d 282, 297-99; People v. Sweet (1989) 207 CA3d 78, 82.)
Moreover, because of the confusion regarding whether Proposition 114 would take precedence over Proposition 115, it may also be argued that Proposition 115 may not be applied to crimes committed before June 25, 1992, when the Supreme Court’s decision in Yoshiato v. Superior Court (1992) 2 C4th 978 clarified the validity of Proposition 115.
There are at least three legal principles upon which such a claim may be made:
1) Due Process/Notice under the State (Art. I §15) and Federal (14th Amendment) constitutions. (See People v. Green (1991) 227 CA3d 692, 698.)
2) Ex Post Facto / Due Process principle which preclude the courts from judicial constructions which retroactively impose criminal liability. (See In re Baert (1988) 205 CA3d 514, 518.)
3) Federal Due Process principles which preclude the states from arbitrarily denying a state-created right. (See Hicks v. Oklahoma (1980) 447 US 343, 346 [65 LEd2d 175].)
(An even stronger argument applies to the window between the Court of Appeal decision in Yoshiato and the grant of review: 8/5/91 – 10/24/91.)
However, in People v. Superior Court (Clark) (1994) 22 CA4th 1541, 1550-51, the court rejected the argument that the subsequently superseded opinion in Yoshiato raises due process and ex post facto issues regarding crimes committed during the period between issuance of the Yoshiato appellate opinion and acceptance of the case for review by the California Supreme Court. The argument was rejected on the basis that the Yoshiato opinion was never final and therefore never had any precedential value.
[Research Note: See FORECITE BIBLIO 8.21.]
CALJIC NOTE: See FORECITE F 8.21 n4.
F 540A Note 24 Merger As A Question For The Jury Per Apprendi
The Related Issues portion of CC 540A treats the issue of merger (per People v. Ireland (1969) 70 C2d 522) as a purely legal question for the court to resolve. However, whether or not the underlying felony was committed solely to facilitate the killing will depend on the facts of the case and, therefore, it is a matter for the jury to resolve as required by Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348].
