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Name: People v. Fish
Case #: A168087, A168088
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 06/05/2024

The Court of Appeal holds that the trial court’s failure to expressly instruct the jury that the unanimity instruction applied to the lesser included offense—and not just the charged offense—was harmless error under Chapman. The record did not provide a rational basis for the jury to have distinguished between the two acts offered in support of the lesser included offense. The court emphasizes that trial courts should expressly instruct the jury that the unanimity requirement applies both to the charged offense and any lesser included offenses when a guilty finding may rest on more than one act.

The full opinion is available…

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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. Schuller (2023) 15 Cal.5th 237
Case #: S272237
Court: CA Supreme Court
Opinion Date: 08/17/2023

Opinion by: Justice Groban (unanimous decision). Justice Liu filed a concurring opinion, in which Justice Evans concurred.

When a defendant presents substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory precludes the jury from making a factual finding essential to prove the malice element of murder, and results in federal constitutional error. Schuller was convicted of first degree murder and found sane at the time of the killing. On appeal he argued the trial court’s refusal to instruct on imperfect self-defense was federal constitutional error. The Court of Appeal agreed the trial court erred in failing…

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Name: People v. Odell (2023) 92 Cal.App.5th 307
Case #: B319448
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 06/05/2023

Penal Code section 29800(a)(1), possession of a firearm by a felon, does not violate the Second Amendment. Johnson initiated a verbal and physical altercation with Odell at a motel where they stayed as separate guests. Johnson ultimately obeyed the motel manager’s order to return to his room. Odell retrieved a gun from his car and followed Johnson to his room. Video footage captured images of the men grappling. The fight continued away from the camera’s lens, and it was during that time Odell shot Johnson to death. A jury convicted Odell of possession of a firearm by a felon and…

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Name: People v. Myles (2023) 89 Cal.App.5th 711
Case #: D079825
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/23/2023

In a trial for burglary, when instructing on whether the defendant had the specific intent to commit theft, the jury must be instructed that the defendant had to act with the specific intent to permanently deprive the owner of possession. Myles, who was homeless, broke a window and entered an unoccupied house. Inside, he drank a juice box, ate ice cream, and charged the battery in the owner’s vehicle. Months later, defendant tried to break into the house again. The only issue at his trial for burglary and attempted burglary was whether he had the specific intent to commit theft…

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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. Kenney (2023) 88 Cal.App.5th 516
Case #: D079227
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/22/2023

The trial court did not err in denying motion to dismiss charges of resisting a peace officer where the deputy verbally informed defendant of the existence of a domestic violence restraining order (DVRO) prior to lawfully removing him from the home. Kenney was inside his mother’s home in violation of a temporary DVRO that had not yet been served. Deputies, from outside Kenney’s locked bedroom door, advised him that there was a restraining order on file and that he was not allowed to be there. After Kenney refused to come out, deputies forced the door open and arrested Kenney. He…

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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. Doane
Case #: A153709
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 07/22/2021

Conviction reversed where prosecutor misstated the law by telling the jury that "innocence" as used in the instruction on circumstantial evidence (CALCRIM No. 224) refers to actual innocence, not guilt of a lesser included offense. Defendant Doane lost control of his truck and collided head-on with a vehicle, killing the driver. He fled on foot and was apprehended the following day. A jury convicted him of vehicular manslaughter with gross negligence, and a separate count of leaving the scene of an accident. He appealed. Held: Gross vehicular manslaughter conviction reversed. The jury was instructed under CALCRIM No. 224: "If…

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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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