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Name: People v. Cummins
Case #: B169295
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 03/16/2005
Subsequent History: Rev. den. 6/29/05
Summary

Cummins and Kelly carjacked the victim, tied him up and put him in the trunk of the car. Cummins then pushed the victim over a cliff. Kelly (coappellant to Cummins) was convicted of attempted premeditated murder, under the doctrine of natural and probable consequences. On appeal, he argued that the evidence was insufficient to establish the attempted murder was a natural and probable consequence of the carjacking and robbery, because he could not have foreseen Cummins’ act of pushing the victim off of a cliff. The appellate court rejected the argument, finding that Kelly knowingly participated in the carjacking and drove the victim to the area where Cummins pushed him off the cliff. He participated in the march of the victim to the cliff. The jury could reasonably have found that he helped lead the victim to the cliff with the knowledge and intent that harm would come to him. The jury was instructed with CALJIC 3.02 regarding the natural and probable consequences of the offenses, but was not instructed that it could find him guilty of attempted premeditated murder only if the crime was committed in furtherance of the commission of the target offenses. Since it was undisputed that the robbery and carjacking were completed at the time of the attempted murder, Kelly contended that the failure to so instruct was error. The appellate court rejected the argument. The robbery and carjacking were still in progress at the time the victim was pushed off the cliff, by virtue of the fact that the defendants kept him captive. Further, it was not error for the court to have failed to instruct the jury that the premeditated attempted murder had to be a natural and probable consequence of the robbery, because the premeditation enhanced the sentence and therefore had to be determined by the jury under Apprendi. The jury was properly instructed on the elements of attempted premeditated murder and found that the attempt on the victim’s life was premeditated. Nothing more was required.