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Name: People v. Chavez
Case #: F034110
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 05/03/2004
Subsequent History: Rehg. den. 5/19/04; Rev. den. 7/21/04

Although the jury was not properly instructed on the issue of intent in a first degree drive-by murder case, the error was harmless. At trial, the jury was presented with two theories of first degree murder: first, premeditated and deliberate murder with express malice, and second, “drive-by” murder, or murder perpetrated by means of intentionally discharging a firearm from a motor vehicle with the intent to inflict death. In regard to the latter theory, the jury was also instructed on a felony-murder theory, with the crime of intentionally discharging a firearm from a motor vehicle with the intention of causing death as the predicate offense, and was accordingly instructed that such a murder would be first degree murder regardless of whether the killing was intentional, unintentional, or accidental. The court agreed with appellants that the latter instruction was given in error, because first degree drive-by murder is not felony murder as it is not included in the list of enumerated felonies, and because the description of drive-by murder in Penal Code section 189 includes an intent to kill, which is never a requirement of felony murder. The court concluded that first degree drive-by murder does not require premeditation, but does require a specific intent to kill. However, the court held that the error was harmless given the prosecution’s stress on the requirement of an intent to kill during closing argument, as well as other jury instructions that specifically required an intent to kill to support the first degree murder charges.