Skip to content
Name: In re E. R.
Case #: A124706
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 10/21/2010

There is no inconsistency in finding a minor guilty of conspiracy to commit first degree murder and finding a separately charged count of murder to be in the second degree. People v. Cortez (1998) 18 Cal.4th 1223 held that the mental state required for conspiracy to commit murder is indistinguishable from premeditation to support first degree murder. The separately charged murder resulted in a verdict of second degree along with a finding of conspiracy to commit murder. However, inconsistent verdicts are allowed. One can conspire to commit murder but nevertheless commit a lesser offense under circumstances that were not contemplated in the conspiracy.
Double jeopardy principles are not violated when the court renders a verdict finding the minor did not personally use a weapon and then later, after a lunch recess, indicate that the verdict was confused with that of another minor on trial and that the court found that E.R. did personally use a weapon. This was a clerical error rather than a substantive error. This was an immediate repair of a genuine error in the announcement of the verdict and there could be no violation of due process in these circumstances.
The enhancement pursuant to Penal Code section 12022.53, subdivision (d) does not require that the injury be inflicted by the minor. The enhancement applies so long as the minor’s conduct was a substantial factor contributing to the injuries, and thus was a proximate cause of those injuries within the enhancement. The enhancement applied when minor fired a .25 caliber gun which killed one person, and the person with great bodily injury was shot with a .38 caliber bullet in the same occurrence.