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Name: People v. Concha
Case #: B195197
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 03/11/2010

Instructional error was harmless where a rational jury would have found that defendants premeditated and deliberated the attempted murder. The California Supreme Court held in this case that a defendant who commits an attempted murder may also be liable for first degree murder when his accomplice is killed by the intended victim during the course of the attempted murder, but concluded that the trial court erred when it failed to instruct the jury that in order to be found guilty of first degree murder, the defendant must personally have acted wilfully, deliberately, and with premeditation when he committed the attempted murder. It then remanded the matter to the appellate court to determine whether that instructional error prejudiced appellants with respect to their first degree murder convictions. The appellate court held that the omission was subject to a harmless error analysis. The court reviewed the entire record to determine whether a rational jury would have made the necessary findings. The defendants confronted the victim and threatened to kill him, chased him, and seriously injured him. The evidence was such that beyond a reasonable doubt a rational jury would have found that each defendant deliberated and premeditated the attempted murder. Further, by returning guilty verdicts on the attempted murder counts, the jury found that each defendant either intended to kill the victim or shared in each other’s intent to kill him. Once the jury found the necessary intent to commit murder, premeditation and deliberation were readily apparent. The instructional error was therefore harmless.