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Name: People v. Lee
Case #: F028940
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/18/2000
Subsequent History: Review Granted March 28, 2001 (S094597)
Summary

The jury was properly instructed on the doctrine of transferred intent to kill as to the murder charges because there was evidence to support a valid transferred intent theory. Moreover, because defendants failed to object to the giving of this instruction, the issue is not cognizable on appeal unless the error resulted in a miscarriage of justice. Here, even if the evidence had not been sufficient to support giving the instruction, giving it could not have affected the substantial rights of the defendants nor could it have resulted in a miscarriage of justice. The manner in which defendants killed their victims in this “gangland” style execution overwhelmingly supported their first degree murder convictions. The trial court erred by failing to instruct the jury that to find the enhancement penalty provisions of Penal Code section 664, subdivision (a), applicable, it must find the defendants personally premeditated and deliberated the attempted murders. This error, however, was harmless beyond a reasonable doubt. The prosecutor did not argue that the transferred intent doctrine applied to the charged attempted murders. Even though no actual attempt to kill Troy was affected here because Troy was at work instead of at home playing basketball, the doctrine of transferred intent is still applicable. The intent to kill Troy could be transferred to the actual victims at the time defendants fired their handguns with the intent to kill. Similarly, defendants’ premeditation and planning did not go for naught. Even though they were unsuccessful in killing MOD members, the planning and premeditation could serve as the basis for first-degree murder convictions on their actual victims. The prosecutor therefore did not misstate the doctrine of transferred intent. Even if she had, however, the jury was correctly instructed and it was not probable, in light of the overwhelming evidence of premeditation, deliberation, planning and intent to kill, that defendants would have received a more favorable result in the absence of the prosecutor’s argument. Moreover, the prosecutor did not even mention transferred intent in her closing argument. This was her fall-back theory and not her principal theory.