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Name: People v. Hein
Case #: B106689
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 01/29/2001
Subsequent History: Review denied 4/25/01 and Reporter of Decisions directed not to publish this opinion in the Official Reports

The sentences imposed on the defendants did not constitute cruel and unusual punishment under the constitution and the basic test set forth in People v. Dillon (1983) 34 Cal.3d 441. However, the appellate court here urged the California Supreme Court to review the Dillon decision in the context of this case. The evidence was sufficient to sustain the underlying felony-murder convictions of all the appellants where, as a group, the appellants went to the victim’s property to take property from him, and were engaged in an altercation which resulted in the stabbing of the victim. The issue was whether the appellants had the intent requisite for the underlying felonies of burglary and attempted robbery and intended to aid and abet the unlawful purpose. There was direct and circumstantial evidence of this intent regarding all of the appellants, including Milotti, who was standing in the doorway when the stabbing occurred. However, there was insufficient evidence to support the special circumstance finding under Penal Code section 190.2, subdivision (d), because under that section, a defendant must either have the intent to kill or act as a major participant in the underlying felony with reckless indifference to human life. Here, although Milotti may have been standing in the doorway to act as the lookout or to try to prevent the robbery victim from leaving, the evidence was insufficient to show that Milotti acted with reckless indifference to human life. Therefore, the special circumstance finding had to be reversed.