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Name: People v. Garcia
Case #: E057279
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/09/2015
Subsequent History: Review granted 9/23/2015: S227938

Trial court erred by instructing the jury on the legally impossible crime of conspiracy to commit attempted murder, but the error was harmless. As the result of a melee at a party in which several people were killed, the three defendants were convicted of two counts of first degree murder. Defendant Samuel Navarro was also convicted of attempted murder and had a multiple-murder special circumstance found true. As to Garcia and Joseph Navarro, the jury found the multiple-murder special circumstance not true. On appeal they raised a number of instructional issues. Held: Affirmed. The jury was instructed regarding evidence of…

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Name: People v. Sek
Case #: B251196
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/17/2015
Subsequent History: Review granted 7/22/2015: S226721

Trial court prejudicially erred by giving CALJIC No. 8.66.1 "kill zone" instruction in attempted murder case. Sek and My were convicted of two counts of attempted murder and related crimes for shooting at the victims (Mejia and Perez) while they were trying to drive away from the defendants' vehicle. On appeal, the defendants argued that the trial court erred by instructing the jury with CALJIC No. 8.66.1 concerning the kill zone theory of liability for attempted murder. Held: Convictions for the attempted murder of Perez reversed. The kill zone theory applies only if the evidence shows that the defendant tried…

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Name: People v. Chandler
Case #: S207542
Court: CA Supreme Court
District CalSup
Opinion Date: 08/28/2014

Offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that threat was sufficient to cause a reasonable person to be in fear. Chandler was convicted of two counts of attempted criminal threats (Pen. Code, §§ 422, subd. (a), 21a). On appeal, he argued that the trial court should have instructed the jury that the crime of attempted criminal threat requires a finding that the intended threat reasonably could have caused sustained fear under the circumstances, as the court held in People v. Jackson (2009) 178 Cal.App.4th 590, 599. The appellate court…

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Name: People v. Marinelli
Case #: H039416
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 03/27/2014

A defendant convicted of attempted lewd and lascivious acts on a child under 14 years (Pen. Code, §§ 664, 288, subd. (a)) is eligible for relief under Penal Code section 1203.4, subdivision (a). In 2008, appellant pled no contest to attempted lewd and lascivious acts on a child under 14 years (Pen. Code, §§ 664, 288, subd. (a)) and was granted formal probation. After successfully completing probation, he filed for relief under section 1203.4, subdivision (a), which was granted. The prosecution then appealed. Held: Affirmed. Section 1203.4, subdivision (a) permits a defendant who has successfully completed probation to withdraw his…

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Name: People v. Ngo
Case #: H038673
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 03/28/2014

Defendant's Penal Code section 288 conviction was reversed because the unanimity instruction incorrectly defined the time period for the charged offense and the error was not harmless. Appellant was convicted of sexual penetration with a child aged 10 or younger (Pen. Code, § 288.7, subd. (b), count 1), lewd or lascivious acts on a child by force (Pen. Code, § 288, subd. (b)(1), counts 2 and 4), and simple battery (Pen. Code, §§ 242, 243, subd. (a), count 3) based on two separate incidents. The information alleged that counts one and two occurred in 2010 and that counts three and…

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Name: People v. Canizales
Case #: E054056
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 03/05/2014
Subsequent History: Review granted 6/25/2014: S217860

"Kill Zone" instruction was proper in attempted murder case where gang members fired multiple shots into group with rival gang members, intending to kill one of them. Defendants, members of the Ramona Blocc gang, shot at rival gang members Pride and Bolden in a crowd. They were convicted of first degree murder and two counts of premeditated attempted murder. The jury found gun use allegations true and that the offenses were committed for the benefit of a gang. One issue on appeal challenged the trial court's "kill zone" instruction as applied to the attempted murder of Bolden. Held: Affirmed.…

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Name: People v. Nguyen
Case #: G046081
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 01/18/2013

Conviction for attempted possession of an assault weapon was proper where AK-47 kit was not yet fully assembled. Nguyen purchased a kit on the Internet that contained all the parts necessary to assemble an AK-47 semiautomatic assault weapon. Police officers seized the partially assembled weapon during a search. Nguyen was convicted of attempted unlawful assault weapon activity and attempted possession of an assault weapon. On appeal, Nguyen argued that the statutory scheme will not support a conviction until the AK-47 is fully assembled and enables the shooter to fire repeated shots without reloading manually. The appellate court…

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Name: People v. McCloud
Case #: B228209
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 12/05/2012

Trial court prejudicially erred by giving kill zone theory instruction because there was no evidence that appellants intended to kill 46 people with 10 bullets. Appellants McCloud and Stringer fired 10 shots at a party with a large number of people present, killing two people and injuring another. Seven of the bullets did not hit anyone. They were both convicted of two counts of second degree murder. Stringer was also convicted of 46 counts of attempted murder. On appeal, Stringer argued that the trial court committed prejudicial error by instructing the jury on the kill zone theory…

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Name: People v. Chandler
Case #: E054154
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 11/19/2012
Subsequent History: Review granted 2/13/2013: S207542

An attempt to make a criminal threat is a crime, regardless of whether it was objectively reasonable, under the circumstances, for the victim to be in fear; this holding does not violate the First Amendment. For no apparent reason, appellant threatened two of his neighbors. One of the neighbors was somewhat equivocal as to whether appellant's actions caused her to be in fear. He was convicted of attempting to make a criminal threat, the lesser included offense to making a criminal threat. On appeal, appellant contended the instructions failed to convey a requirement that, under the circumstances, the victim would…

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Name: In re Maria D.
Case #: B231186
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 09/13/2011

The misdemeanor of incitement to riot (Pen. Code, sec. 404.6, subd. (a)), does not punish attempted lynching, which is a felony violation of sections 664 and 405a. A group of men were detained with their hands placed on a patrol car, and Maria's boyfriend was resisting placement in a patrol car. Maria gestured to the men to join her as she approached the detaining officer exclaiming, "f*** you pigs . . . let him go." The lynching statute prohibits the taking of any person from the lawful custody of a peace officer by means of a riot. An attempt…

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