second degree murder instruction in California

2015(People v. Taylor (2010) 48 Cal.4th 574, 623 ; People v. Valdez (2004) 32 Cal.4th 73, 114, fn. 17 .) Appellant contends—contrary to his position in the previous appeal— that second degree murder is not an included offense of first degree felony murder and that consequently, his objection to a second degree murder instruction should have carried the day at trial.

2007“Not only does the manner in which each of these three killings was perpetrated strongly indicate in itself that each of the killings was willful, premeditated, and deliberate, but the entire course of conduct clearly revealed by the evidence, taken as a whole, is inconsistent with any suggestion that the killings were not willful, premeditated, and deliberate.” (Id. at pp. 1184-1185; see also People v. Valdez (2004) 32 Cal.4th 73, 116 [ 8 Cal.Rptr.3d 271 , 82 P.3d 296 ] [speculation that the victim might have been shot during a struggle did not require a second degree murder instruction].) De

2019We reasoned that, "Whether a felony is inherently dangerous for purposes of the second degree felony-murder rule is a question of law, or, at a minimum, a mixed question of law and fact, which we review de novo." ( James , supra , 62 Cal.App.4th at p. 259, 74 Cal.Rptr.2d 7 , citing People v. Taylor (1992) 6 Cal.App.4th 1084 , 1090-1094, 8 Cal.Rptr.2d 439 ( Taylor ).) In that light, we also considered what evidence we could look to in determining inherent dangerousness. ( Taylor , at pp. 1090-1094, 8 Cal.Rptr.2d 439 .) Our review of second degree felony-murder cases found that many cases made t

2019We reasoned that, "Whether a felony is inherently dangerous for purposes of the second degree felony-murder rule is a question of law, or, at a minimum, a mixed question of law and fact, which we review de novo." ( James , supra , 62 Cal.App.4th at p. 259, 74 Cal.Rptr.2d 7 , citing People v. Taylor (1992) 6 Cal.App.4th 1084 , 1090-1094, 8 Cal.Rptr.2d 439 ( Taylor ).) In that light, we also considered what evidence we could look to in determining inherent dangerousness. ( Taylor , at pp. 1090-1094, 8 Cal.Rptr.2d 439 .) Our review of second degree felony-murder cases found that many cases made t

2021(Westerfield, supra, 6 Cal.5th at p. 717 .) Wilson claims the trial court’s failure to provide a second degree murder instruction runs afoul of the United States Supreme Court’s decision in Beck v. Alabama (1980) 447 U.S. 625, 638 (Beck).

2005(Cf. Beck v. Alabama (1980) 447 U.S. 625, 637 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 .) "`[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and]... an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. . . .' [Citation.]" ( People v. Lewis (2001) 25 Cal.4th 610, 645 , 106 Cal.Rptr.2d 629 , 22 P.3d 392 .) *776 However, we need not reach the issues of whether defendant was entitled to a second degree murder instruction in the first instance, or whether the trial court's instructions regarding

2019We reasoned that, “Whether a felony is inherently dangerous for purposes of the second degree felony- murder rule is a question of law, or, at a minimum, a mixed question of law and fact, which we review de novo.” (James, supra, 62 Cal.App.4th at p. 259 , citing People v. Taylor (1992) 6 Cal.App.4th 1084, 1090-1094 (Taylor).) In that light, we also considered what evidence we could look to in determining inherent dangerousness.

2019We reasoned that, "Whether a felony is inherently dangerous for purposes of the second degree felony-murder rule is a question of law, or, at a minimum, a mixed question of law and fact, which we review de novo." ( James , supra , 62 Cal.App.4th at p. 259, 74 Cal.Rptr.2d 7 , citing People v. Taylor (1992) 6 Cal.App.4th 1084 , 1090-1094, 8 Cal.Rptr.2d 439 ( Taylor ).) In that light, we also considered what evidence we could look to in determining inherent dangerousness. ( Taylor , at pp. 1090-1094, 8 Cal.Rptr.2d 439 .) Our review of second degree felony-murder cases found that many cases made t

2016(See Banks, supra, 59 Cal.4th at pp. 1160-1161; Breverman, supra, 19 Cal.4th at pp. 162-163.) 2.

2016(Breverman, supra, 19 Cal.4th at p. 158 .) Assuming that was counsel’s reason12—and putting aside any questions about the strength of counsel’s chosen defense—we find that counsel’s request was not a rational tactical decision, particularly given that there is no sign that he objected to the court’s instruction on voluntary manslaughter, based on sudden quarrel or heat of passion.

2016(Banks, supra, 59 Cal.4th at p. 1155 .) Our Supreme Court held the omission of a second degree murder instruction was harmless because the “far more plausible inference” was that the defendant killed the victim to obtain money, rather than “out of malice unrelated to any robbery.” (Id. at p. 1161.) Here, there is overwhelming evidence—including defendant’s own admissions—that he and Bryan Barnes (Barnes) were jointly engaged in robbing Wu and Qu when Barnes shot and killed them.

2016(Compare Banks, supra, 59 Cal.4th at p. 1161 [trial court’s error in failing to instruct on second degree murder was harmless where it was not reasonably probable that properly instructed jury would have concluded that defendant shot victim at ATM during an argument where “far more plausible inference” was that he shot victim during robbery].) The prejudicial effect of counsel’s request that a second degree murder instruction not be given was compounded by the court’s incorrect instruction on the felony-murder 13 As we shall discuss in part II., post, we need not resolve appellant’s additional

2016(See Taylor, supra, 48 Cal.4th at pp. 623-624; see also People v. McNally (2015) 236 Cal.App.4th 1419, 1425 [“[i]t is settled that brandishing a loaded firearm at a person is an act dangerous to human life,” and, “ ‘[e]ven if the act results in a death that is accidental, . . . the circumstances surrounding the act may evince implied malice’ ”].) The trial court was therefore obligated to give a second degree murder instruction.

2015(See People v. Le (1995) 39 Cal.App.4th 1518, 1521-1522 [defendant who requested instruction on simple assault as lesser related offense of charged robbery could not complain that court gave instruction on lesser related offense of aggravated assault, the crime of which defendant was convicted, even though he objected to the aggravated assault instruction].) III.

2015(See People v. Castaneda (2011) 51 Cal.4th 1292, 1328-1329 [rejecting claim that instruction on second degree murder as lesser included offense was required and noting “defendant does not address . . . how second degree murder, which requires malice, can be a lesser included offense of first degree felony murder, which does not require malice”].) Regardless of its characterization as a lesser included offense, the amended information charging appellant with murder under section 187, subdivision (a) provided him with sufficient notice he could be convicted of second degree murder with malice.

2008In other words, even if the jury found defendant guilty of first degree murder on the theory of felony-murder robbery under the felony-murder-robbery special circumstance, "it was not legally compelled to fix the penalty at death, but could fix it instead at a term of imprisonment for life without possibility of parole." ( People v. Waidla, supra, 22 Cal.4th at p. 736, fn. 15 , 94 Cal.Rptr.2d 396 , 996 P.2d 46 .) Finally, defendant adds that a "truncated" and incomplete version of the robbery-murder special-circumstance instruction (CALJIC No. 8.81.17)—which did not contain the optional second

2008In other words, even if the jury found defendant guilty of first degree murder on the theory of felony-murder robbery under the felony-murder-robbery special circumstance, "it was not legally compelled to fix the penalty at death, but could fix it instead at a term of imprisonment for life without possibility of parole." ( People v. Waidla, supra, 22 Cal.4th at p. 736, fn. 15 , 94 Cal.Rptr.2d 396 , 996 P.2d 46 .) Finally, defendant adds that a "truncated" and incomplete version of the robbery-murder special-circumstance instruction (CALJIC No. 8.81.17)—which did not contain the optional second

2007It is well established that "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." ( People v. Lewis (2001) 25 Cal.4th 610, 646 , 106 Cal.Rptr.2d 629 , 22 P.3d 392 ; accord, People v. Horning (2004) 34 Cal.4th 871, 906 , 22 Cal.Rptr.3d 305 , 102 P.3d 228 ; see also, e.g., People v. Earp (1999) 20 Cal.4th 826, 885-886 , 85 Cal. Rptr.2d 857 , 978 P.2d 15 .) Here, the jury returned a true finding on the kidnapping-mur

2007It is well established that "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." ( People v. Lewis (2001) 25 Cal.4th 610, 646 , 106 Cal.Rptr.2d 629 , 22 P.3d 392 ; accord, People v. Horning (2004) 34 Cal.4th 871, 906 , 22 Cal.Rptr.3d 305 , 102 P.3d 228 ; see also, e.g., People v. Earp (1999) 20 Cal.4th 826, 885-886 , 85 Cal. Rptr.2d 857 , 978 P.2d 15 .) Here, the jury returned a true finding on the kidnapping-mur

2007It is well established that "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." ( People v. Lewis (2001) 25 Cal.4th 610, 646 , 106 Cal.Rptr.2d 629 , 22 P.3d 392 ; accord, People v. Horning (2004) 34 Cal.4th 871, 906 , 22 Cal.Rptr.3d 305 , 102 P.3d 228 ; see also, e.g., People v. Earp (1999) 20 Cal.4th 826, 885-886 , 85 Cal. Rptr.2d 857 , 978 P.2d 15 .) Here, the jury returned a true finding on the kidnapping-mur

2007It is well established that "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." ( People v. Lewis (2001) 25 Cal.4th 610, 646 , 106 Cal.Rptr.2d 629 , 22 P.3d 392 ; accord, People v. Horning (2004) 34 Cal.4th 871, 906 , 22 Cal.Rptr.3d 305 , 102 P.3d 228 ; see also, e.g., People v. Earp (1999) 20 Cal.4th 826, 885-886 , 85 Cal. Rptr.2d 857 , 978 P.2d 15 .) Here, the jury returned a true finding on the kidnapping-mur

2004(Ibid.) “ ‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” ’ ” (Cunningham, supra, 25 Cal.4th at p. 1008.) 18 There was no substantial evidence introduced at defendant’s trial that the killing was other than robbery murder. 19 And on appeal defendant does not advance a theory that would support a second degree murder instruction, but merely points to evidence that there may have been a struggle in the house and that the victim was shot at close range. 20 This is insufficient to support the mu

2004(See, e.g., People v. Avena (1996) 13 Cal.4th 394, 424 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ] [“ ‘Defendant advances no theory consistent with the evidence that would have allowed the jury to convict him of second degree murder’ ”]; People v. Morris (1991) 53 Cal.3d 152, 211 [ 279 Cal.Rptr. 720 , 807 P.2d 949 ], overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [ 38 Cal.Rptr.2d 394 , 889 P.2d 588 ].) At most, defendant raises the issue of sufficiency of the evidence relating to the robbery, and from that would have us hold that he acted with malice in killing d

2004(See, e.g., People v. Avena (1996) 13 Cal.4th 394, 424 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ] [“ ‘Defendant advances no theory consistent with the evidence that would have allowed the jury to convict him of second degree murder’ ”]; People v. Morris (1991) 53 Cal.3d 152, 211 [ 279 Cal.Rptr. 720 , 807 P.2d 949 ], overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [ 38 Cal.Rptr.2d 394 , 889 P.2d 588 ].) At most, defendant raises the issue of sufficiency of the evidence relating to the robbery, and from that would have us hold that he acted with malice in killing d

2004(See, e.g., People v. Avena (1996) 13 Cal.4th 394, 424 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ] [“ ‘Defendant advances no theory consistent with the evidence that would have allowed the jury to convict him of second degree murder’ ”]; People v. Morris (1991) 53 Cal.3d 152, 211 [ 279 Cal.Rptr. 720 , 807 P.2d 949 ], overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [ 38 Cal.Rptr.2d 394 , 889 P.2d 588 ].) At most, defendant raises the issue of sufficiency of the evidence relating to the robbery, and from that would have us hold that he acted with malice in killing d

2004(See, e.g., People v. Avena (1996) 13 Cal.4th 394, 424 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ] [“ ‘Defendant advances no theory consistent with the evidence that would have allowed the jury to convict him of second degree murder’ ”]; People v. Morris (1991) 53 Cal.3d 152, 211 [ 279 Cal.Rptr. 720 , 807 P.2d 949 ], overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [ 38 Cal.Rptr.2d 394 , 889 P.2d 588 ].) At most, defendant raises the issue of sufficiency of the evidence relating to the robbery, and from that would have us hold that he acted with malice in killing d