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Name: People v. Lagunas (2023) 97 Cal.App.5th 996
Case #: G061812
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/12/2023

Defendant’s conviction for Watson murder was supported by substantial evidence. Defendant was driving under the influence of alcohol in a residential area. He accelerated through a turn, lost control of the car, and killed a six-year-old girl who was playing on the sidewalk. A jury convicted him of second degree implied malice murder, i.e., a “Watson” murder. On appeal, defendant argued there was insufficient evidence he deliberately acted with implied malice. Held: Affirmed. Murder is the unlawful killing of a human being with malice aforethought. Malice may be implied when a person drives a motor vehicle under the influence of alcohol and kills someone. (People…

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Name: People v. Perez-Robles (2023) 95 Cal.App.5th 222
Case #: C095414
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/06/2023
Subsequent History: Opn. modified 9/18/2023

Trial court prejudicially erred by not instructing the jury on misdemeanor sexual battery as a lesser included offense of sexual battery by restraint. Defendant, a massage therapist, was convicted of sex offenses involving six clients, including two counts of sexual battery while the victim was unlawfully restrained (Pen. Code, § 243.4(a)). On appeal, he argued that the evidence of restraint was at least questionable, and the trial court thus had a duty to instruct on a lesser included offense that lacked the element of restraint—misdemeanor sexual battery (§ 243.4(e)). Held: Reversed in part and remanded. The People acknowledged that misdemeanor…

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Name: People v. Waqa (2023) 92 Cal.App.5th 565
Case #: A163761
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 06/14/2023

There was insufficient evidence of asportation to support the jury’s aggravated kidnapping finding under the One Strike law where the rape victim was moved from one bathroom stall to another. A jury convicted defendant of forcible rape after he sexually assaulted a woman in a public restroom. Because he moved the victim from the restroom’s small stall to its large stall before raping her, the jury also found true an aggravated kidnapping circumstance under the One Strike law (Pen. Code, § 667.61), requiring a sentence of 25 years to life. Defendant appealed. Held: Sentence modified. Under the One Strike law,…

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Name: People v. Fugit (2023) 88 Cal.App.5th 981
Case #: A163497
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 02/28/2023

Trial court’s instruction on force likely assault as a lesser included offense of assault with a deadly weapon did not violate defendant’s due process rights. Fugit threw a ceramic coffee mug at a car, shattering the passenger window. The information charged Fugit with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Over his objection, the jury was instructed that assault by any means of force likely to produce great bodily injury (force-likely assault) (Pen. Code, § 245, subd. (a)(4)) was a lesser included offense (LIO) of assault with a deadly weapon. He was acquitted of assault with…

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Name: People v. Pack
Case #: A161564
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 02/07/2023

For purposes of due process, assault with a deadly weapon charge (Pen. Code, § 245, subd. (a)(1)) did not provide notice to defendant that he could be convicted of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). Defendant was charged with assault with a deadly weapon and other offenses. Over defendant’s objection, the jury was instructed on the uncharged offense of assault with force likely, as a lesser included offense (LIO) of assault with a deadly weapon. Defendant was convicted of the LIO. On appeal, the Attorney General conceded instructional error, and the Court of…

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Name: People v. Mumin
Case #: D076916
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/19/2021

Trial court correctly instructed jury with "kill zone" theory of attempted murder liability where defendant shot through closed doors at pursuing police officers. Mumin was convicted of special circumstance murder after he killed a man during a store robbery, as well as several counts of attempted murder for shooting at pursuing police. The trial court instructed the jury on a kill zone theory of attempted murder liability. On appeal, Mumin argued the evidence was insufficient to warrant a kill zone instruction. Held: Affirmed. When a single act is charged as the basis for the attempted murders of two or more…

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Name: People v. Bradley
Case #: A159105
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 06/24/2021

The evidence of reckless indifference to human life supported defendants' convictions for felony murder. Defendants participated in an attempted robbery, during which one of the victims was killed. During their initial trial, Senate Bill No. 1437 was passed, which amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder. It amended Penal Code section 189 to provide that a defendant who was not the actual killer and lacked an intent to kill is not liable for felony murder unless he was a major participant in the underlying felony and acted with reckless indifference…

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Name: People v. Fontenot
Case #: S247044
Court: CA Supreme Court
District CalSup
Opinion Date: 08/26/2019

Opinion by Justice Cuéllar (joined by Chief Justice Cantil-Sakauye and Justices Chin and Corrigan). Justice Kruger filed a concurring opinion. Justice Liu filed a concurring and dissenting opinion, in which Justice Groban concurred.

Although attempted kidnapping is not a lesser included offense (LIO) of kidnapping (Pen. Code, § 207, subd. (a)), defendant charged with kidnapping had notice (based on Pen. Code, § 1159) that he could be convicted of attempted kidnapping. A girl named Destiny was babysitting Madeline and several other girls when Fontenot approached, grabbed Madeline's arm, and tried to pull her away. Destiny grabbed Madeline's…

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Name: People v. Shiga
Case #: B256009
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 04/17/2019

Defendant was improperly convicted of both arson of an inhabited structure and arson of a structure under Penal Code section 451, subdivisions (b) and (c) because they are forms of the same offense of simple arson. Shiga was convicted of aggravated arson (Pen. Code, § 451.5), arson of an inhabited structure (Pen. Code, § 451, subd. (b)), and arson of a structure (Pen. Code, § 451, subd. (c)), among other charges, for the burning of a church and neighboring structures, causing over $3.2 million in property damage. Shiga appealed and the court addressed whether he was improperly convicted of two…

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Name: People v. Alvarez
Case #: D074457
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/28/2019

In implied malice murder prosecution, trial court properly refused to instruct on gross vehicular manslaughter while intoxicated because it is not a lesser included offense (LIO) of murder. Alvarez drove after ingesting alcohol and drugs and caused a collision that killed one person and injured another. A jury convicted him of implied malice murder. Alvarez appealed, arguing, inter alia, the trial court wrongfully refused to instruct the jury on gross vehicular manslaughter while intoxicated as a lesser included offense to implied malice murder. Held: Affirmed. Under the statutory elements test, an offense is an LIO if the greater offense necessarily…

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