Prosecution use of peremptory challenge to strike African-American prospective juror did not constitute Wheeler/Batson error in absent of showing of discriminatory intent. The appellants were convicted of murder with special circumstances and sentenced to life without parole. Appellant Battle contended the trial court erred in “failing to find he presented a prima facie case of discrimination when the prosecutor exercised his first peremptory challenge to excuse the only African-American potential juror.” However, the Court of Appeal found insufficient support in the record that the excused juror was the only African-American on the panel and there was no prima facie case of discrimination because her responses to questions reflected a lack of interest in the proceedings and lack of memory regarding prior jury service.
Intent to kill of aider and abettor: Appellant Barron contended the court erred by not instructing the jury that the special circumstances could not be found true unless he harbored the intent to kill at the time of the killing as opposed to the time he aided and abetted in the killing. However, Penal Code section 190.2 merely requires the aider and abettor to intend to kill at the time of aiding and abetting.
Withdrawal defense: Barron claimed the court erred in not instructing the jury that he could assert the defense of withdrawal if he attempted to notify the other participants in the killing of his withdrawal, but such notice was impossible because, at that moment, the killing occurred. This issue was forfeited for lack of objection and in any event, lacks merit. Waiting too long before attempting to withdraw, thus making it impossible to withdraw, or prevent the crime, does not qualify to raise the withdrawal defense.
Imperfect self-defense: Appellant Abramyan asserted error because the trial court did not instruct on imperfect self-defense based on the intimate partner battering syndrome. Abramyan was the deceased’s son. He presented evidence of serious physical and emotional abuse levied by his father against his mother and siblings. Even assuming the intimate partner battering syndrome applies in this context, the instruction was not supported here. Abramyan testified that at the time of the killing his father posed no imminent danger to him or his family. Nor did the expert testimony establish his fear of imminent harm. Thus, the evidence was insufficient to support an instruction on voluntary manslaughter based on imperfect self-defense of self and/or others.
Application of provocation to lying in wait murder: There was no error when the court instructed the jury that provocation did not apply to murder while lying in wait or conspiracy to commit murder. This instruction did not prejudice the jury’s consideration of Abramyan’s intimate partner battering evidence. If the jury found murder by lying in wait, or conspiracy to commit murder, neither of these offenses could be reduced to second degree murder via a provocation defense. All conspiracy to commit murder is of the first degree. Likewise, all murder by means of lying in wait is the equivalent of a premeditation finding.
The timing of lying in wait: The court instructed the Abramyan jury that a substantial period of lying in wait could occur within 90 seconds. He alleged this was an incorrect statement of law and violated due process because it implied that a period of time longer than 90 seconds “must be substantial.” However, this was a correct statement of law and did not imply that a longer period must be substantial.
Sufficiency of financial gain special circumstance: Abramyan alleged insufficient evidence supported the special circumstance finding against him of financial gain because the person he paid to kill his father was not the actual killer. However, section 190.2, subdivision (b) differs from the general aiding and abetting statues in that it also includes inducing and soliciting the offense. One who hires for murder is subject to this circumstance regardless of whether he directly or indirectly hires the killer.
