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Name: People v. Johnston
Case #: B163966
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 12/04/2003
Subsequent History: Rev. den. 3/3/04

Appellant stabbed the brother of his ex-girlfriend during a fight, which was preceded by a verbal altercation during which appellant threatened the victim and his family with violence. He was charged with murder, and the jury was instructed on murder, manslaughter, and self-defense. The jury convicted of second-degree murder, rejecting theories supporting a lesser offense. On appellant’s motion for a new trial, the court found no malice and reduced the crime to voluntary manslaughter based on heat of passion/sudden quarrel. The prosecutor appealed. The appellate court held that the disposition was an appealable order, and that reversal and reinstatement of the jury’s verdict would not violate double jeopardy principles. Further, on appropriate cases trial judges may reduce a conviction to a lesser offense and may do so based on insufficiency of evidence of the greater crime. It may also be based on a determination that the evidence is insufficient for the greater charge as a matter of law. The trial court’s order here was based on the latter assessment: the trial court found that as a matter of law appellant could not be guilty of murder since his the stabbing did not occur until appellant was first attacked. However, here appellant was not entitled to claim that he was provoked into using deadly force, because he provoked the physical encounter by rude challenges to the victim to fight, coupled with threats of violence and death to that person and his family. Therefore, the appellate court reversed the trial court’s judgment and reinstated the jury verdict.