Tag Archives: Homicide

Premeditation and Deliberation Is Not Alone Sufficient to Prove Lying In Wait
October 17th, 2016

In People v. Nelson (2016) 1 Cal.5th 513 the evidence of “a substantial period of watching and waiting” was insufficient, so the finding of lying in wait was set aside (both as a theory of first-degree murder and as a special circumstance).  “The evidence showed, directly or by reasonable inference, that Nelson rode his bicycle […]

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Is Larcenous Intent an Element of Robbery?
September 12th, 2016

For decades CALJIC 9.40 has relied on the literal language of PC 211 to define the specific intent required for robbery as an intent to permanently deprive the possessor of the property that is taken. However, this definition is erroneous because robbery requires an intent to steal which is defined as an intent to permanently […]

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CC 548: Murder Alternative Theories — 2016 Revision
September 7th, 2016

Prior to 2016 CC 548 simply informed the jurors that: “You do not need to agree on the same theory [of murder].” However, in People v. Sanchez (2013) 221 Cal.App.4th 1012, 1025 recognized that giving such an instruction may be reversible error if the different theories of guilt result in different degrees of guilt: Unanimity […]

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Gang Special Circumstance
August 17th, 2015

  People v. Carr (2010) 190 Cal. App. 4th 475, 486, held that CC 736’s “inclusion of a knowledge element in the special circumstances of killing on behalf of a gang is not legally incorrect even if the statute itself does not expressly require its inclusion because it is constitutionally required.” Carr did note, however, […]

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Involuntary Manslaughter and Criminal Negligence
August 7th, 2015

  People v. Butler (2010) 187 Cal. App. 4th 998, 1014, upheld CC 580 as follows:   The trial court’s adherence to the formulation of the instruction in [CC 580] adequately informed the jury of the criminal negligence standard applicable to all three forms of involuntary manslaughter. As [previously stated by the Court of Appeal] […]

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Provocation Does Not Require Single Incident Qualifying As Provocation
July 27th, 2015

  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. […]

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Felony Murder: Disagreements and Confusion
June 19th, 2015

  On April 23, 2010, CC 521 was revised. As explained by the CC Committee, “the definition of deliberation and premeditation in [CC No. 521], Murder: Degrees could be misleading in cases in which an extended act, such as strangling or drowning, causes the homicide.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial […]

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What Is A “Major Participant” Within The Meaning Of Penal Code 190.2(d)?
March 7th, 2015

  Penal Code Section 190.2 (d) was enacted to bring California law into conformity with the High Court’s decision in Tison v. Arizona (1987) 481 U.S. 137 and the statutory language of section 190.2(d) derives verbatim from the decision in Tison. (People v. Estrada (1995) 11 Cal.4th 568, 575.) Tison held that the Eighth Amendment […]

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Aider And Abettor: Natural And Probable Consequences – Unanimity As To Commission Of Nontarget Offense
January 21st, 2015

  The majority opinion in People v. Smith (2014) 60 Cal. 4th 603 concluded that the requirement of juror unanimity as to all essential elements of the charge does not apply to commission of the nontarget offense alleged under the natural and probable consequences doctrine:    The prosecution theory was that Littleton was the killer. […]

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Gang Special Circumstance: Predicate Offense Must Occur Before Charged Offense
February 1st, 2014

  People v. Duran (2002) 97 Cal. App. 4th 1448, 1458, [predicate offense cannot be satisfied by a crime which occurred after the charged offense].

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