Filed 5/26/05 (Publish this opinion after People v. Wright, also filed 5/26/05)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S117370
v.
Ct.App.
1/1
A097168
DARYL RANDLE,
Alameda
County
Defendant and Appellant.
Super. Ct. No. 137823
The central question presented by this case is whether one who kills in the
actual but unreasonable belief he must protect another person from imminent
danger of death or great bodily injury is guilty of voluntary manslaughter, and not
murder, because he lacks the malice required for murder. In other words, should
California recognize the doctrine of imperfect defense of others? We conclude the
answer is, yes.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The homicide victim Brian Robinson lived with his parents and his cousin,
Charles Lambert. Late one evening, as Robinson drove up to their home, he saw
defendant getting out of Lambert’s car, holding a large stereo speaker he had just
stolen from it.
Robinson confronted defendant, saying he was going to “beat your ass.”
Defendant pulled a .25-caliber pistol from his pocket and fired it several times.
Defendant and his cousin Byron W., who had helped him break into Lambert’s
1
car, then fled on foot. Byron retained a backpack full of Lambert’s stereo
equipment.
Defendant
claimed
he
fired after Robinson “reached for his hip.” However,
he did not claim he thought Robinson was reaching for a gun or other deadly
weapon. Moreover, Byron testified Robinson approached them with a cup or
bottle in his hand. Defendant and Byron agreed it was some sort of object made of
glass that Robinson threw at them after defendant fired the pistol.
Defendant gave conflicting accounts as to his aim. On the one hand, he
claimed he “fired the gun in the air.” On the other hand, he earlier testified, “I
shot at him.”
Defendant testified he heard Robinson say something about getting a gun
himself, and that he heard two loud bangs behind them as they fled. Byron
testified he also heard gunshots as they ran. There was no evidence to corroborate
these claims.
Robinson went into his house and roused Lambert. The two men got into a
truck and pursued defendant and Byron. Defendant eluded them, but they caught
Byron.
According to Lambert’s testimony, he and Robinson took turns beating
Byron with their fists. After Byron fell to the ground, Robinson kicked him.
Lambert pulled Robinson off Byron. Having recovered the stolen stereo
equipment, they returned to the truck. However, Robinson jumped out of the
truck and began beating Byron again. As he did, Robinson yelled at Lambert to
“get pops,” meaning Robinson’s father; Lambert drove off to do so. While
Lambert was present, the beating of Byron lasted “[p]robably five, ten minutes.”
2
Byron testified his assailants1 hit and kicked him. One of them stomped on
his chest, stepped on his head, and kicked him in the mouth. The beating
continued for five minutes. One of the men spoke of putting Byron in the truck
and taking him into the hills. Byron was bleeding from the mouth; his nose was
broken. He was hollering his lungs out. He thought he was going to die. He was
being beaten when defendant cried out, “Get off my cousin.” Byron’s assailant
continued beating him, and then defendant opened fire. Defendant, Byron
believed, saved his life.
Defendant testified he ran away, but then backtracked in search of Byron.
He heard someone yelling for help and someone else saying, “I’m going to kill
this little nigger.” Coming closer, defendant saw someone beating Byron.
Defendant shouted, “Stop. Get off my cousin.” Byron’s assailant glanced at
defendant, but then resumed beating Byron. Defendant testified he fired his gun to
make the man stop beating Byron.
Two prior statements defendant had made, one to the police and the other to
a deputy district attorney, were played for the jury. According to defendant’s
statement to the police, Robinson was beating Byron when defendant first shot at
him. Defendant was, he said, “mainly thinking about getting him off my little
cousin.” However, defendant admitted shooting at Robinson after Robinson
started running away. In his statement to the deputy district attorney, defendant
said he warned Robinson to get off Byron, shot once in the air, and then when
Robinson did not respond, shot at him. Again, defendant admitted shooting at
Robinson while he was running away. Defendant added he ceased firing because
he ran out of ammunition.
1
He did not identify Robinson or Lambert.
3
Sharalyn Lawrence and Jennifer Wellington witnessed the beating from
Lawrence’s upstairs window. They could see that Byron was “being really hurt.”
Still, for a couple of minutes they were undecided what they should do. “I am
like, this is Oakland,” Wellington testified; “what do you do[?]” Finally, hearing
Byron cry out, “Somebody help me,” Lawrence telephoned 911, reporting a man
“getting his ass beat.” She said an ambulance should be dispatched. Defendant
shot Robinson after Lawrence called 911 to report Byron was being badly beaten.
As previously stated, although defendant and Byron testified Robinson was
still beating Byron when defendant fired the shots, defendant, in his statements to
the police and the deputy district attorney, said he fired one shot at Robinson while
Robinson was running away. The testimony of Wellington and Lawrence tends to
support the view that defendant shot at Robinson after Robinson stopped beating
Byron and while he was running away. Wellington so testified, and Lawrence’s
testimony, while not very clear on this point, suggested that at least some of the
shots were fired as Robinson was running away.
The cause of Robinson’s death was a bullet wound in the abdomen. The
bullet was a .25 caliber. It entered Robinson’s lower right chest or upper abdomen
and lodged in the left side of his abdomen. Robinson was not wounded in the
back.
At trial, defendant asked for an instruction on imperfect defense of another.
The trial court denied the request. After deliberating five days, the jury convicted
defendant of second degree murder (Pen. Code, §§ 187, 189)2 and automobile
burglary (§ 459). The jury also sustained firearm use allegations on both the
murder count (§ 12022.53, subd. (d)) and the automobile burglary count
2
All further statutory references are to the Penal Code.
4
(§ 12022.5, subd. (a)). Defendant was sentenced to a term of 40 years to life
imprisonment. This timely appeal followed.
Holding the trial court erred in refusing to instruct on imperfect defense of
another, the Court of Appeal reversed the judgment convicting defendant of
second degree murder. The Court of Appeal remanded the cause for a new trial on
that count; in all other respects, it affirmed the judgment.
We conclude the trial court prejudicially erred in refusing to instruct the
jury on the doctrine of imperfect defense of others.
Moreover, we conclude it was error, under the circumstances of this case,
for the trial court to instruct the jury that defendant could be found guilty of
second degree felony murder if the killing was committed in the course of
discharging a firearm in a grossly negligent manner in violation of section 246.3.
(People v. Robertson (2004) 34 Cal.4th 156, 171 (Robertson).) Unlike the
defendant in Robertson, defendant admitted shooting at Robinson. Therefore, the
collateral purpose exception to the merger doctrine is inapplicable. (Ibid.)
Accordingly, we affirm the judgment of the Court of Appeal, reversing the
trial court judgment insofar as it convicted defendant of second degree murder,
and we remand the cause for further proceedings consistent with the views
expressed herein.
II.
DISCUSSION
A. Imperfect Defense of Others
Again, the central question presented by this case is whether one who kills
in the actual but unreasonable belief he must protect another person from
imminent danger of death or great bodily injury is guilty of voluntary
manslaughter, and not murder, because he lacks the malice required for murder.
Defendant
contends
such
a person is guilty, under the doctrine of imperfect
5
defense of others, of only voluntary manslaughter, and that the trial court
prejudicially erred in refusing his request to instruct the jury on the doctrine.
The Attorney General contends (1) California has not recognized the
doctrine of imperfect defense of others; (2) even assuming California does
recognize the doctrine, defendant was not entitled to invoke it because he created
the circumstances leading to the killing; and (3) in any event, any error in refusing
to give the requested instruction was harmless here.
1. Whether California recognizes the doctrine
We begin by reviewing the related concepts of self-defense and defense of
others. Self-defense is perfect or imperfect. For perfect self-defense, one must
actually and reasonably believe in the necessity of defending oneself from
imminent danger of death or great bodily injury. (People v. Flannel (1979) 25
Cal.3d 668, 674 (Flannel).) A killing committed in perfect self-defense is neither
murder nor manslaughter; it is justifiable homicide. (§ 197; People v. Anderson
(2002) 28 Cal.4th 767, 782 (Anderson).)
One acting in imperfect self-defense also actually believes he must defend
himself from imminent danger of death or great bodily injury; however, his belief
is unreasonable. (In re Christian S. (1994) 7 Cal.4th 768, 771 (Christian S.);
Flannel, supra, 25 Cal.3d at p. 674.) Imperfect self-defense mitigates, rather than
justifies, homicide; it does so by negating the element of malice. (People v. Rios
(2000) 23 Cal.4th 450, 461 (Rios); Flannel, supra, 25 Cal.3d at p. 679.)
“California statutes have long separated criminal homicide into two classes,
the greater offense of murder and the lesser included offense of manslaughter.
The distinguishing feature is that murder includes, but manslaughter lacks, the
element of malice. (Compare § 187, subd. (a) [‘[m]urder is the unlawful killing of
a human being . . . with malice aforethought’] with § 192 [‘[m]anslaughter is the
unlawful killing of a human being without malice’].)
6
“Malice exists, if at all, only when an unlawful homicide was committed
with the ‘intention unlawfully to take away the life of a fellow creature’ (§ 188), or
with awareness of the danger and a conscious disregard for life (ibid.; People v.
Whitfield (1994) 7 Cal.4th 437, 450; see also People v. Watson (1981) 30 Cal.3d
290, 300 [‘wanton disregard for human life’]).[3] In certain circumstances,
however, a finding of malice may be precluded, and the offense limited to
manslaughter, even when an unlawful homicide was committed with intent to kill.
In such a case, the homicide, though not murder, can be no less than voluntary
manslaughter.” (Rios, supra, 23 Cal.4th at p. 460.)
“Under the doctrine of imperfect self-defense, when the trier of fact finds
that a defendant killed another person because the defendant actually, but
unreasonably, believed he was in imminent danger of death or great bodily injury,
the defendant is deemed to have acted without malice and thus can be convicted of
no crime greater than voluntary manslaughter.” (Christian S., supra, 7 Cal.4th at
p. 771.) “Imperfect self-defense obviates malice because that most culpable of
mental states ‘cannot coexist’ with an actual belief that the lethal act was
necessary to avoid one’s own death or serious injury at the victim’s hand.
[Citations.]” (Rios, supra, 23 Cal.4th at p. 461.)
3
“Not all murder requires the People to prove the defendant killed
intentionally or with conscious disregard for life. Under the felony-murder rule, a
homicide is murder when it occurs in the course of certain serious and inherently
dangerous felonies (§ 189 [first degree felony murder]; see, e.g., People v.
Patterson (1989) 49 Cal.3d 615, 626 (Patterson) [nonstatutory second degree
felony murder].) In such cases, the intent to commit a dangerous felony that
actually results in death is substituted for malice, thus establishing the extent of
culpability appropriate to murder. (Patterson, supra, 49 Cal.3d at p. 626; see also
People v. Dillon (1983) 34 Cal.3d 441, 474-476.) The felony-murder doctrine is
not pertinent to the discussion here.”
7
Defendant contends defense of others, like self-defense, has an imperfect
form. That is, defendant contends, if a killing is committed by someone who
actually but unreasonably believes he is acting under the necessity of defending
another person from imminent danger of death or great bodily injury, then the
killing is voluntary manslaughter, not murder, because the killer is not acting with
malice.
Defendant relies on our recent opinion in People v. Michaels (2002) 28
Cal.4th 486 (Michaels). In Michaels, the defendant confessed to killing his
girlfriend’s mother JoAnn, but claimed he did so to protect his girlfriend Christina
from JoAnn’s physical and sexual abuse, which, Christina told the defendant, was
driving her to suicide. (Id. at p. 501.) On appeal from his first degree murder
conviction, the defendant contended the trial court should have instructed the jury,
on its own motion, on the doctrine of imperfect defense of others.
The doctrine was, we noted, of “doubtful” applicability, given the facts of
the case. “Defendant’s problem is that both self-defense and defense of others
requires a fear of imminent harm (People v. Humphrey (1996) 13 Cal.4th 1073,
1082), so presumably imperfect self-defense or imperfect defense of others would
require an unreasonable belief that harm was imminent. But when defendant
committed the homicide, Christina was at Broad Horizons, a youth detention
facility, and murder victim JoAnn was asleep in her apartment. The record does
not indicate when Christina would next be released to visit JoAnn, but even if it
was the next day it is doubtful that the facts would show that defendant believed,
reasonably or unreasonably, that any threatened danger to Christina was
‘imminent.’ ” (Michaels, supra, 28 Cal.4th at pp. 530-531.)
Nevertheless, we addressed the defendant’s contention that the trial court
had a sua sponte duty to instruct on the doctrine. “The doctrine of unreasonable or
imperfect defense of others, in contrast to the doctrine of unreasonable or
8
imperfect self-defense, is not well established in California law. It has been
recognized in only one decision, People v. Uriarte (1990) 223 Cal.App.3d 192,
198, and there the court found the doctrine inapplicable because Uriarte did not
present evidence that he believed (reasonably or unreasonably) that the asserted
danger to his wife was imminent or that shooting the victims was necessary to
rescue her. Uriarte was decided two months after this case was tried. Thus at the
time of the trial here, there was no California authority recognizing a doctrine of
imperfect defense of others.” (Michaels, supra, 28 Cal.4th at p. 529.)
Because the defense of imperfect defense of others was not, at the time of
the Michaels trial, a well-established doctrine under California law, we held the
trial court was not required to instruct the jury on the defense on its own motion.
However, we acknowledged the doctrine “follows logically from the interplay
between statutory and decisional law. Section 197 provides that ‘[h]omicide is . . .
justifiable when committed by any person . . . [¶] . . . [w]hen resisting any
attempt to murder any person, or to commit a felony, or to do some great bodily
injury upon any person.’ ” (Michaels, supra, 28 Cal.4th at p. 530.) Accordingly,
we observed, “[i]nnovative counsel could view that statute in light of Flannel’s
analysis of imperfect self-defense (see People v. Flannel, supra, 25 Cal.3d at
pp. 674-680), and propose an instruction on imperfect defense of others.”
(Michaels, at p. 530.)
Again, as we said in Michaels, the doctrine of imperfect defense of others
“follows logically from the interplay between statutory and decisional law.”
(Michaels, supra, 28 Cal.4th at p. 530.) The doctrine is based on statute in that (1)
malice is required for murder (§ 187) and (2) perfect self-defense and perfect
defense of others are complete defenses to charges of murder (§ 197). One who
kills in imperfect self-defense—in the actual but unreasonable belief he must
defend himself from imminent death or great bodily injury—is guilty of
9
manslaughter, not murder, because he lacks the malice required for murder.
(Anderson, supra, 28 Cal.4th at p. 782; Christian S., supra, 7 Cal.4th at p. 771.)
For the same reason, one who kills in imperfect defense of others—in the actual
but unreasonable belief he must defend another from imminent danger of death or
great bodily injury—is guilty only of manslaughter.
The Attorney General contends that, contrary to Michaels, California has
rejected the doctrine of imperfect defense of others. California has done so, the
Attorney General argues, by treating the reasonableness requirement differently
for self-defense than for defense of others. In self-defense, the Attorney General
notes, reasonableness is determined from the point of view of a reasonable person
in the defendant’s position. The jury must consider all the facts and circumstances
it might expect to operate on the defendant’s mind. (People v. Minifie (1996) 13
Cal.4th 1055, 1065; People v. Humphrey, supra, 13 Cal.4th at p. 1083.) In
defense of others, the Attorney General asserts, reasonableness is determined, not
from the point of view of the defendant, but rather from the point of view of the
person the defendant was seeking to defend. That is, the California rule for
defense of others, the Attorney General argues, is the alter ego rule, under which
one who attempts to defend another person steps into the shoes of the other
person, and so acts at his peril if that person was in the wrong.
The Attorney General bases his argument on his construction of section
197, on his interpretation of the case law, and on his reading of public policy. He
is, we conclude, mistaken in every respect.
a.
Section 197
Section 197 provides in pertinent part: “Homicide is also justifiable when
committed by any person in any of the following cases: 1. When resisting any
attempt to murder any person, or to commit a felony, or to do some great bodily
injury upon any person; [¶] . . . [¶] 3. When committed in the lawful defense of
10
such person, or of a wife or husband, parent, child, master, mistress, or servant of
such person, when there is reasonable ground to apprehend a design to commit a
felony or to do some great bodily injury, and imminent danger of such design
being accomplished; but such person, or the person in whose behalf the defense
was made, if he was the assailant or engaged in mutual combat, must really and in
good faith have endeavored to decline any further struggle before the homicide
was committed.”
Section 197, the Attorney General argues, impliedly rejects the doctrine of
imperfect defense of others. His argument runs as follows: The statutory basis of
the doctrine of self-defense is subdivision 3, while the statutory basis of the
doctrine of defense of others is subdivision 1. Section 197, subdivision 3
expressly incorporates a reasonable person standard: “when there is reasonable
ground to apprehend a design to commit a felony or to do some great bodily
injury, and imminent danger of such design being accomplished . . . .” (Italics
added.) Since subdivision 1 does not expressly incorporate such a reasonableness
standard, the Attorney General argues, the Legislature must have intended, with
regard to defense of others, to adopt the alter ego rule.
A problem with the Attorney General’s argument is that section 197 does
not compartmentalize the doctrines of self-defense and defense of others as neatly
as that. Subdivision 1, which the Attorney General characterizes as the defense-
of-others provision, may also be read as including self-defense. No reason appears
why the phrase “any person,” which occurs both in the stem of section 197 and in
subdivision 1, would not cover oneself as well as others. Under section 197,
subdivision 1, a homicide is justifiable when committed by “any person” “resisting
any attempt to murder any person, or to commit a felony, or to do some great
bodily injury upon any person.” (Italics added.)
11
On the other hand, subdivision 3, which the Attorney General characterizes
as the self-defense provision, also expressly covers the defense of others, albeit
others in specified relationships with the person who comes to their defense.
Under this provision, a homicide is justifiable when committed by any person “in
the lawful defense of such person, or of a wife or husband, parent, child, master,
mistress, or servant of such person, when there is reasonable ground to apprehend
a design to commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished . . . .” (§ 197, subd. 3, italics added.)
Moreover, the Attorney General’s argument—that the Legislature must
have intended to adopt the alter ego rule for defense of others because it did not
expressly incorporate a reasonable person standard in subdivision 1—finds no
support in the legislative history of section 197.
Section 197, enacted in 1872, was based on the Crimes and Punishment Act
of 1850. Under the Crimes and Punishment Act, a reasonable person standard
governed defense of others as well as self-defense. Both of the defenses were
covered by section 29. “Justifiable homicide is the killing of a human being in
necessary self-defence, or in defence of habitation, property, or person, against
one who manifestly intends or endeavors, by violence or surprise, to commit a
felony . . . .” (Stats. 1850, ch. 99, § 29, p. 232, italics added.) The applicability of
the reasonable person standard to section 29 was made clear in the next section.
“A bare fear of any of these offences, to prevent which the homicide is alleged to
have been committed, shall not be sufficient to justify the killing. It must appear
that the circumstances were sufficient to excite the fears of a reasonable person,
and that the party killing really acted under the influence of those fears, and not in
a spirit of revenge.” (Stats. 1850, ch. 99, § 30, p. 232, italics added.) There is no
reason to believe the Legislature, by enacting section 197, intended to substitute
the alter ego standard for the reasonable person standard with regard to defense of
12
others. To the contrary, the code commissioners noted: “The commission have
modified the language [of specified sections of the Crimes and Punishment Act of
1850], making it accord, in many respects, with that of the New York Penal Code
[Field’s Draft] §§ 260, 261, and 262. The legal effect, however, has not been
changed.” (Code commrs. note foll. Deering’s Ann. Pen. Code, § 197 (1985 ed.)
p. 163, italics added.)
b.
Case law
The Attorney General also misreads our cases. He asserts: “Early
California cases observe that one who kills in the defense of another steps into the
shoes of the person defended for purposes of evaluating a claim that homicide was
justified. ‘A person interfering in a difficulty in behalf of another simply steps in
the latter’s shoes; he may lawfully do in another’s defense what such other might
lawfully do in his own defense but no more . . . .’ (People v. Will (1926) 79
Cal.App. 101, 114 [(Will)], citing People v. Travis (1880) 56 Cal. 251, 256
[(Travis)] . . . .”
By calling to our attention the fact that Will cites Travis, the Attorney
General implies that our decision in Travis supports the passage he quotes from
the Court of Appeal’s opinion in Will. However, it does not. In Travis, Wirt
Travis was convicted of manslaughter for killing A.G. Hill. Wirt, along with his
sister Georgia and their brother John, attended a social function also attended by
Hill. Georgia walked out, explaining to Wirt that she could not remain in the hall
with Hill because he had impugned her virtue. Wirt so informed his brother John.
The two of them went back into the hall and took seats apart from one another but
near Hill. John hit Hill. Hill drew a pistol on John. Wirt then shot Hill in the
back, killing him. (Travis, supra, 56 Cal. at pp. 252-253.)
Wirt claimed he acted in defense of John, believing Hill was about to shoot
John. His claimed fear had some basis. A witness testified that Hill had
13
previously told him “the first thing he was going to do with them boys [the Travis
brothers], he would commence killing them, if he got in a row with them.”
(Travis, supra, 56 Cal. at p. 252.) While the witness did not tell the Travises of
Hill’s threat against them, they may well have heard of it because the witness had
told “fifty or sixty [other] people” (ibid.), and word like that presumably traveled
fast in Forestville in 1878.
Contrary to the Attorney General’s argument, Travis does not stand for the
proposition that the reasonableness of a claim of defense of others is tested from
the point of view of the person the defendant was seeking to defend. Indeed, in
Travis, we upheld a jury instruction to the effect that Wirt’s killing of Hill would
have been justifiable if the jury had found that Wirt shot Hill in order to prevent
Hill from shooting John, “if that was necessary to prevent [Hill] from executing
his design; provided there was, or appeared to the defendant to be, imminent
danger to the life or limb of his brother from the hostile and threatening attitude of
Hill.” (Travis, supra, 56 Cal. at p. 256, italics added.) John was closely related to
Wirt. However, their relationship as brothers was not one of the relationships
specified in subdivision 3 of section 197, in that John was not Wirt’s “wife or
husband, parent, child, master, mistress, or servant.”4 Nevertheless, we upheld a
4
Perkins explains the origins and evolution of such catalogues of
relationships in statutory provisions covering self-defense and defense of others.
“The privilege of using force in defense of others, as a separate privilege,
developed partly by accident. It had its roots in the law of property. The privilege
of one to protect what was ‘his’ was extended to include the protection of his wife,
his children and his servants. In the course of time this privilege outgrew the
property analogy and came to be regarded as a ‘mutual and reciprocal defence.’
The household was regarded as a group, any member of which had a privilege to
defend any other member. ‘A man may defend his family, his servants or his
master, whenever he may defend himself.’ Even this concept of the privilege was
outgrown and it came to include the members of one’s immediate family or
household and any other ‘whom he is under a legal or socially recognized duty to
(footnote continued on next page)
14
jury instruction that focused on Wirt’s point of view, and not upon the point of
view of the brother he was seeking to defend.
People v. Will, supra, 79 Cal.App. 101, is disapproved insofar as it is
inconsistent with the views expressed herein.
c.
Public policy
The
Attorney
General’s
public policy argument is that the doctrine of
imperfect self-defense is “an open invitation to assaults, not just upon undercover
officers effectuating arrests, but upon innocent bystanders in many situations not
the least of them being mob violence and gang warfare.” However, the controlling
public policy decision here was made by the Legislature when it decided the
unlawful killing of a human being without malice is manslaughter, not murder.
(§ 192.)
2. Whether defendant may invoke the doctrine
The Attorney General, relying on Christian S., supra, 7 Cal.4th 768,
contends defendant is not entitled to invoke the doctrine of imperfect defense of
protect.’ Thus a conductor was privileged to defend his passenger, and a man
privileged to defend a lady friend whom he was escorting at the moment. The
present position, which represents a merging of the privilege of crime prevention
with the privilege of defending others, is that one may go to the defense of a
stranger if that person is the innocent victim of an unlawful attack.” (Perkins &
Boyce, Criminal Law (3d ed. 1982) Self-Defense, § 5, pp. 1144-1145, fns.
omitted.)
While acknowledging some courts had adopted the alter ego rule, Perkins
states the “sound” view was that one coming to the defense of others “is protected
by the usual mistake-of-fact doctrine and may act upon the situation as it
reasonably seems to be.” (Perkins & Boyce, Criminal Law, supra, § 5, p. 1147,
fn. omitted.) He adds: “Most of the codes that deal separately with the defense of
another seem to leave no trace of the view that one who goes to the aid of another
‘acts at his peril’ with reference to the right of that person to receive such aid
. . . .” (Id. at p. 1148, fn. omitted.)
15
others because he created the circumstances leading to the killing. In Christian S.,
we observed, “It is well established that the ordinary self-defense doctrine—
applicable when a defendant reasonably believes that his safety is endangered—
may not be invoked by a defendant who, through his own wrongful conduct (e.g.,
the initiation of a physical assault or the commission of a felony), has created the
circumstances under which his adversary’s attack or pursuit is legally justified.
[Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be
invoked in such circumstances. For example, the imperfect self-defense doctrine
would not permit a fleeing felon who shoots a pursuing police officer to escape a
murder conviction even if the felon killed his pursuer with an actual belief in the
need for self-defense.” (Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)
Defendant contends the Attorney General is barred from raising this
argument because he did not raise it in the Court of Appeal. The Attorney General
responds the argument was “implicit” in his Court of Appeal brief. We disagree.
Fairly read, the Attorney General’s brief in the Court of Appeal is limited to the
argument we discussed earlier, that contrary to Michaels, supra, 28 Cal.4th 486,
California has rejected the doctrine of imperfect defense of others, and has,
instead, adopted the alter ego rule.
However, this issue, whether defendant is precluded from invoking the
doctrine of defense of others because he created the circumstances leading to the
killing, was squarely raised in the Attorney General’s petition for review, which
we granted. We may decide any issue raised or fairly included in the petition or
answer. (Cal. Rules of Court, rule 29(b)(1).) The Attorney General urges us to
exercise our discretion to decide this issue.
As a matter of policy, we generally will not consider on review any issue
which could have been, but was not, timely raised in the Court of Appeal. (Cal.
Rules of Court, rule 28(c)(1); Gavaldon v. DaimlerChrysler Corp. (2004) 32
16
Cal.4th 1246, 1265.) However, “[i]n a number of cases, this court has decided
issues raised for the first time before us, where those issues were pure questions of
law, not turning upon disputed facts, and were pertinent to a proper disposition of
the cause or involved matters of particular public importance. (E.g., Temple
Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 469, fn. 2; Cedars-
Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 7-8, fn. 2; Jolly v. Eli
Lilly & Co. (1988) 44 Cal.3d 1103, 1118; Fisher v. City of Berkeley (1984)
37 Cal.3d 644, 654 & fn. 3.)” (People v. Superior Court (Ghilotti) (2002) 27
Cal.4th 888, 901, fn. 5, italics added.)
The facts underlying the Attorney General’s argument were undisputed.
Defendant admitted arming himself with a pistol when he and Byron set out to
burglarize cars, and he admitted using the weapon when Robinson surprised him
in the act of burglarizing Lambert’s car. Therefore, we conclude the Attorney
General is not barred, by his failure to raise it below, from arguing that defendant
is not entitled to invoke the doctrine of imperfect defense of others because he
created the circumstances leading to the killing.
Turning to the merits, we agree with defendant.
The Attorney General’s argument fails because although defendant’s criminal
conduct certainly set in motion the series of events that led to the fatal shooting of
Robinson, the retreat of defendant and Byron and the subsequent recovery of the
stolen equipment from Byron extinguished the legal justification for Robinson’s
attack on Byron. (See Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)
The record supports the conclusion that Robinson was taking the law into
his own hands, meting out the punishment he thought Byron deserved, and not
17
making a citizen’s arrest as the Attorney General claims.5 While Robinson may
well have had a right to pursue Byron for the purpose of recovering Lambert’s
stolen property, and to use reasonable force to retrieve it,6 the beating of Byron by
Robinson and Lambert went well beyond any force they were entitled to use.
Moreover, after they recovered the stolen stereo equipment and returned to their
truck, Robinson jumped out of the truck and began beating Byron again. At that
point Robinson’s use of force was completely unjustified, and it was at that point,
or shortly thereafter, that defendant shot Robinson.
While we hold defendant’s conduct did not create circumstances legally
justifying Robinson’s attack on Byron, we should not be understood as condoning
it in any respect. By making two fateful choices defendant triggered an escalating
series of events that transformed the most mundane of property crimes into a fatal
shooting. When he set out to burglarize cars, defendant chose to arm himself.
When he was surprised in the act of burglary, defendant chose to use the weapon.
5
Had Robinson and Lambert been attempting to effect a citizen’s arrest, the
use of reasonable force may have been permitted. (§§ 835, 837; People v.
Fosselman (1983) 33 Cal.3d 572, 579.) However, none of the witnesses, not even
Lambert, suggested the beating was incidental to a citizen’s arrest. Indeed,
Lambert testified that Robinson, in renewing the beating, yelled at him to “get
pops,” not “get the police.” According to Byron, one of his assailants spoke of
taking him, not to a police station, but into the hills. According to defendant,
someone said, “I’m going to kill this little nigger.”
6
See, e.g., People v. Young (1963) 214 Cal.App.2d 641. “In this case
defendant’s money was snatched from his hand so quickly that no particular force
was required and no fear engendered upon the instant, but mere demand for return
of the money brought forth the opened knife and the threat to cut defendant’s head
off and he was in fear for his life; ‘I was always afraid of him.’ In these
circumstances the California cases make it plain that the victim has a right to use
reasonable force to recover his money and, if actually or apparently reasonably
necessary, to kill the robber in so doing.” (Id. at p. 648.)
18
Whether, during that initial confrontation, he fired the pistol at Robinson, or fired
in the air, as he variously testified, he raised the stakes enormously.
3. Whether refusal to instruct on the doctrine was harmless
The Attorney General contends that, even assuming arguendo the trial court
erred in failing to instruct on the doctrine of imperfect defense of others, the error
was harmless.
Any error in failing to instruct on imperfect defense of others is state law
error alone, and thus subject, under article VI, section 13 of the California
Constitution, to the harmless error test articulated in People v. Watson (1956) 46
Cal.2d 818, 836. “Did defendant suffer prejudice from the trial court’s failure to
instruct the jury that an unintentional killing in unreasonable self-defense is
involuntary manslaughter? A majority of this court recently held that when, as in
this case, a trial court violates state law by failing to properly instruct the jury on a
lesser included offense, the following test applies: ‘[I]n a noncapital case, error in
failing sua sponte to instruct, or to instruct fully, on all lesser included offenses
and theories thereof which are supported by the evidence must be reviewed for
prejudice exclusively under [Watson]. A conviction of the charged offense may
be reversed in consequence of this form of error only if, “after an examination of
the entire cause, including the evidence” (Cal. Const., art. VI, § 13), it appears
“reasonably probable” the defendant would have obtained a more favorable
outcome had the error not occurred (Watson, [at p. 836].)’ (People v. Breverman,
[(1998)] 19 Cal.4th 142, 178.)” (People v. Blakeley (2000) 23 Cal.4th 82, 93.)
Is it reasonably probable a result more favorable to defendant would have
been reached had the trial court instructed the jury on imperfect defense of others?
This is a close question, but on balance, we agree with defendant.
19
The thrust of defendant’s testimony was that he acted in perfect defense of
another. He claimed he shot at Robinson in the reasonable belief he had to do so
in order to protect Byron from imminent danger of death or great bodily injury.
However, the evidence was also susceptible of the interpretation that defendant’s
belief in the necessity of protecting Byron, supposing he held such a belief, was
unreasonable because Byron was not really in imminent danger of death or great
bodily injury. Indeed, the prosecutor argued to the jury that Bryon was not being
beaten that badly; Byron did not, the prosecutor noted, seek any medical treatment
for the injuries he claimed to have suffered. Under this view of the evidence,
defendant was entitled to an instruction on imperfect defense of others. In
concluding the failure to give the instruction was prejudicial, we note the jury,
even without having been instructed on this theory, took five days to reach its
decision.
B. Section 246.3 and the Merger Doctrine
The instructions permitted the jury to convict defendant of second degree
murder on three theories: express malice, implied malice, and felony murder. The
felony-murder theory was based on defendant’s having discharged a firearm in a
grossly negligent manner (§ 246.3). Defendant contends it was error to instruct on
felony murder because the offense of discharging a firearm in a grossly negligent
manner here necessarily merged with the homicide.
In
People v. Ireland (1969) 70 Cal.2d 522, “we held that the trial court
erred in instructing the jury on second degree felony murder based on the crime of
assault with a deadly weapon. The defendant’s crime of assault with a deadly
weapon merged with a resulting homicide and could not form the basis for an
application of the second degree felony-murder rule. The instructional error was
prejudicial because . . . malice is not an element of second degree felony murder
and therefore the felony murder instruction in the Ireland case permitted the jury
20
to disregard the defendant’s diminished capacity defense. (Id. at p. 539 & fn. 13.)
We observed that ‘[t]o allow such use of the felony-murder rule would effectively
preclude the jury from considering the issue of malice aforethought in all cases
wherein homicide has been committed as the result of felonious assault—a
category which includes the great majority of all homicides.’ (Id. at p. 539.) The
felony-murder instruction is not proper when the predicate felony is an ‘integral
part of the homicide’ and when, under the prosecution’s evidence, it is ‘included
in fact within the offense charged.’ (Id. at p. 539, italics omitted.)” (Robertson,
supra, 34 Cal.4th at p. 169.)
In
Robertson, as in this case, the question presented was “whether the trial
court erred by instructing the jury that defendant could be found guilty of second
degree felony murder if the killing was committed in the course of discharging a
firearm in a grossly negligent manner in violation of section 246.3.” (Robertson,
supra, 34 Cal.4th at p. 164.) The defendant in Robertson claimed he fired into the
air, in order to frighten away several men who were burglarizing his car. (Ibid.)
However, the testimony of a neighbor, as well as ballistics evidence, indicated
defendant shot at the victim. (Id. at p. 162.) This court held the merger doctrine
did not apply because the defendant, by his account, had a “collateral purpose” in
firing his weapon. “In [People v. Mattison (1971) 4 Cal.3d 177], we concluded
that use of the second degree felony-murder rule was appropriate when the
purpose of the predicate felony was independent of or collateral to an intent to
cause injury that would result in death. ([Id.] at p. 185.) Although the collateral
purpose rationale may have its drawbacks in some situations ([People v.] Hansen
[(1994)] 9 Cal.4th [300,] 315), we believe it provides the most appropriate
framework to determine whether, under the facts of the present case, the trial court
properly instructed the jury. The defendant’s asserted underlying purpose was to
frighten away the young men who were burglarizing his automobile. According to
21
defendant’s own statements, the discharge of the firearm was undertaken with a
purpose collateral to the resulting homicide, rendering the challenged instruction
permissible.” (Robertson, at p. 171.)
Here,
unlike
Robertson, defendant admitted, in his pretrial statements to the
police and to a deputy district attorney, he shot at Robinson. Defendant told the
police, “And I was like, ‘Get off my cousin!’ I shot one time in the air, and then
they looked up, and I guess they started running. That’s when I shot towards them
one time.” Upon being questioned by a deputy district attorney, defendant gave
this account: “. . . I said ‘Get off my cousin.’ That’s when I brandished the pistol
and shot one time in the air. And then he just stood there and looked at me like he
didn’t care so I shot again. [¶] Q. Now when you shot, when you shot the next
time where was the gun pointed? [¶] A. It was pointed towards him. [¶] Q. Ok.
And then what did the guy do after you shot the second time when it was pointed
at him? [¶] A. He ran. [¶] Q. And what did you do after he ran? [¶] A. I fired
the gun one last time, he ducked, then he got back up and then when I tried to fire
again it was just, the gun wouldn’t click. It was out of bullets.”
The fact that defendant admitted shooting at Robinson distinguishes
Robertson and supports application of the merger rule here. Defendant’s claim
that he shot Robinson in order to rescue Byron simply provided a motive for the
shooting; it was not a purpose independent of the shooting.
22
DISPOSITION
The judgment of the Court of Appeal reversed the judgment convicting
defendant of second degree murder. The Court of Appeal remanded the cause for
a new trial on that count; in all other respects, it affirmed the judgment. We affirm
the judgment of the Court of Appeal, and we remand the cause for further
proceedings consistent with the views expressed herein.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
23
CONCURRING OPINION BY BAXTER, J.
I concur in the opinion of the court, but write separately to clarify the
limited role that In re Christian S. (1994) 7 Cal.4th 768 (Christian S.) plays in this
case. In particular, I disagree with Justice Brown that Christian S. compels the
outcome here. (See conc. opn. of Brown, J., post, at p. 1.)
Here there was evidence showing that the aggression of Brian Robinson
exceeded any justifiable response to the criminal conduct defendant and his cousin
Byron W. initiated, and that Robinson acted to physically punish Byron when
Byron was helpless and posed no threat to anyone. Under these circumstances,
Christian S. does not categorically bar defendant from invoking the doctrine of
imperfect defense of others. (See maj. opn., ante, at pp. 15-19.) But neither does
Christian S. logically compel the doctrine’s availability in this case, as Justice
Brown contends in her concurring opinion.
In Christian S., an opinion I authored, we addressed the question whether
the Legislature abrogated the doctrine of imperfect self-defense in 1981 by
amending the Penal Code to eliminate the diminished capacity defense.1 We
1
In Christian S., the defendant, a minor, sought review of a judgment
making him a ward of the juvenile court after sustaining a petition charging him
with second degree murder. The evidence showed that the victim was a so-called
skinhead and a possible gang member, and that the defendant began carrying a
handgun after the victim’s friends had physically and verbally harassed and
threatened the defendant for about a year. The victim had blamed the defendant
for damaging his truck, and one day he chased the defendant while repeatedly
(footnote continued on next page)
1
found the Legislature did not do so, and concluded the doctrine remained intact.
As part of a general discussion of the doctrine’s limitations, we noted the “well-
established” rule that “the ordinary self-defense doctrine . . . may not be invoked
by a defendant who, through his own wrongful conduct (e.g., the initiation of a
physical assault or the commission of a felony), has created circumstances under
which his adversary’s attack or pursuit is legally justified. [Citations.]” (Christian
S., supra, 7 Cal.4th at p. 773, fn. 1.) After concluding that, “a fortiori, . . . the
imperfect self-defense doctrine cannot be invoked in such circumstances,” we
gave one clear example of its limited availability: “[T]he imperfect self-defense
doctrine would not permit a fleeing felon who shoots a pursuing police officer to
escape a murder conviction even if the felon killed his pursuer with an actual
belief in the need for self-defense.” (Ibid.) Although we also cautioned the
imperfect self-defense doctrine was a narrow one, requiring a defendant’s actual
fear of an imminent harm (id. at p. 783), we had no need and made no effort to
otherwise define the parameters of the doctrine.
Unlike the instant case, Christian S. did not involve any criminal conduct
initiated by the defendant. Neither did it concern any claim of perfect or imperfect
defense of others. Moreover, the decision did not purport to set forth all the
circumstances under which a defendant may or may not assert the doctrine of
imperfect self-defense. In sum, Christian S. did not recognize, or refuse to
recognize, the imperfect defense of others doctrine, and did not address possible
restrictions to the imperfect self-defense doctrine other than to note the one
threatening “ ‘to get him’ ” and challenging him to fire his weapon. (Christian S.,
supra, 7 Cal.4th at p. 772.) The victim halted his advance each time the defendant
pointed his gun at him. Finally, after some additional taunting by the victim, the
defendant shot and killed him. (Ibid.) Upon finding that the imperfect self-
defense doctrine had not been statutorily abrogated, we remanded the matter for
further proceedings because the record was ambiguous whether the trial court
found the defendant lacked an actual belief in the need for self-defense, or whether
the court mistakenly believed the defense was not viable. (Id. at pp. 783-784.)
2
obvious example above. Accordingly, that decision does not compel the result
here. (See People v. Scheid (1997) 16 Cal.4th 1, 17 [referencing the familiar rule
that language in an opinion is to be understood in light of the facts and the issue
then before the court].)
That said, I concur in the court’s conclusion that nothing we said in
Christian S. prohibits defendant here from invoking the imperfect defense of
others doctrine. (See maj. opn., ante, at pp. 15-19.) Although defendant’s initial
criminal conduct in brandishing and shooting a firearm may well have provoked
anger and fear in Robinson, there appears substantial evidence that Robinson
exceeded any justifiable response when, after catching up to and physically
attacking Byron the first time, Robinson returned to the obviously helpless Byron
a second time to resume beating him.
Although I believe our holding is consistent with the restrictions thus far
recognized for the analogous doctrine of imperfect self-defense, I join Justice
Brown in her call for the Legislature to provide clear definitions of malice, and to
reexamine the issues of whether and to what extent a defendant may invoke the
doctrines of imperfect self-defense and imperfect defense of others. (See conc.
opn. of Brown, J., post, at p. 4; People v. Wright (May 26, 2005, S119067) __
Cal.4th __, __ (conc. opn. of Brown, J.) [at p. 15].) To the extent the doctrines are
legislatively approved in some form, it would be particularly beneficial to have
legislative guidance regarding: (1) the type and nature of criminal conduct,
whether violent or otherwise, that might preclude a defendant from invoking one
or both doctrines; and (2) considerations for determining the duration that a
defendant’s criminal conduct bars either doctrine’s availability.
BAXTER, J.
3
CONCURRING OPINION BY BROWN, J.
I concur in the judgment and opinion of the court.
I write separately because the outcome of this case, although logically
compelled by this court’s earlier decision in In re Christian S. (1994) 7 Cal.4th
768, 771 (Christian S.), seems to me unjust. If I were writing on a clean slate, I
would not permit defendant to take advantage of the fact that his victim Robinson
exceeded the bounds of a lawful citizen’s arrest.
In Christian S., we observed, “It is well established that the ordinary self-
defense doctrine—applicable when a defendant reasonably believes that his safety
is endangered—may not be invoked by a defendant who, through his own
wrongful conduct (e.g., the initiation of a physical assault or the commission of a
felony), has created circumstances under which his adversary’s attack or pursuit is
legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense
doctrine cannot be invoked in such circumstances. For example, the imperfect
self-defense doctrine would not permit a fleeing felon who shoots a pursuing
police officer to escape a murder conviction even if the felon killed his pursuer
with an actual belief in the need for self-defense.” (See Christian S., supra, 7
Cal.4th at p. 773, fn. 1.)
There is no question but that defendant, by his felonious acts, set in motion
the events resulting in his killing of Robinson. “By making two fateful choices
defendant triggered an escalating series of events that transformed the most
mundane of property crimes into a fatal shooting. When he set out to burglarize
cars, defendant chose to arm himself. When he was surprised in the act of
burglary, defendant chose to use the weapon. Whether, during that initial
confrontation, he fired the pistol at Robinson, or fired in the air, as he variously
testified, he raised the stakes enormously.” (Maj. opn., ante, at pp. 18-19.)
1
However,
under
Christian S., defendant may invoke the doctrine of
imperfect defense of others because Robinson’s attack on Byron was not legally
justified. “The Attorney General’s argument fails because although defendant’s
criminal conduct certainly set in motion the series of events that led to the fatal
shooting of Robinson, the retreat of defendant and Byron and the subsequent
recovery of the stolen equipment from Byron extinguished the legal justification
for Robinson’s attack on Byron. (Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)
“The record supports the conclusion that Robinson was taking the law into
his own hands, meting out the punishment he thought Byron deserved, and not
making a citizen’s arrest as the Attorney General claims. While Robinson may
well have had a right to pursue Byron for the purpose of recovering Lambert’s
stolen property, and to use reasonable force to retrieve it, the beating of Byron by
Robinson and Lambert went well beyond any force they were entitled to use.
Moreover, after they recovered the stolen stereo equipment and returned to their
truck, Robinson jumped out of the truck and began beating Byron again. At that
point Robinson’s use of force was completely unjustified, and it was at that point,
or shortly thereafter, that defendant shot Robinson.” (Maj. opn., ante, at
pp. 17-18, fns. omitted.)
The paradigm for permitting imperfect defense of others is a case like that
of Kitty Genovese1—a case where someone is being attacked and a third party has
to decide whether to intervene without knowing the full context. In such a
circumstance, there is good reason to be more lenient with a misperception or
misjudgment. In my view, however, we should never allow a felon whose
felonious activity sets off a series of tragic (and ultimately fatal) events to claim
partial exoneration—particularly if he murders in defense of a crime partner.
The Legislature has made a policy decision that felons who break into
1 See
Gansberg,
37 Who Saw Murder Didn’t Call the Police, N.Y. Times
(Mar. 27, 1964) p. A1.
2
homes or businesses cannot sue for compensation. (Civ. Code, § 847.) Similarly,
the Legislature enacted the Home Protection Bill of Rights in 1984 “ ‘to permit
residential occupants to defend themselves from intruders without fear of legal
repercussions, to give ‘the benefit of the doubt in such cases to the resident . . . .’
[Citation.]” (People v. Hardin (2000) 85 Cal.App.4th 625, 633.) In other words
those who do not play by the rules should not receive the benefit of the rules. In
the same vein, the law should preclude reliance on imperfect defense of others by
miscreants whose misjudgments lead to the death of their victim.
For the Attorney General, the specter raised by the doctrine of imperfect
defense of others extends far beyond the circumstances presented by a case like
this: “A judicially created doctrine of unreasonable defense of others would be an
open invitation to assaults, not just upon undercover officers effectuating arrests,
but upon innocent bystanders in many situations not the least being mob violence
and gang warfare.” Indeed, members of violent street gangs, for whom
manslaughter convictions would be little deterrent since they spend most of their
lives in prison in any event, might well provoke violence in order to have a license
to kill.2
2
That may have been the game the Travis brothers were playing in People v.
Travis (1880) 56 Cal. 251. (Maj. opn., ante, at pp. 13-15.)
3
As the Attorney General observes, imperfect defense of others, like
imperfect self-defense, is a judicially created doctrine. (See People v. Rios (2000)
23 Cal.4th 450, 465.) I have elsewhere urged the Legislature to provide clear
definitions of malice and imperfect self-defense. (People v. Wright (May 26,
2005, S119067) ___ Cal.4th ___, ___ (conc. opn. of Brown, J.) [p. 15].) For the
reasons stated above, the derivative doctrine of imperfect defense of others should
also be reexamined.
BROWN, J.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Randle
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 109 Cal.App.4th 313
Rehearing Granted
__________________________________________________________________________________
Opinion No. S117370
Date Filed: May 26, 2005
__________________________________________________________________________________
Court: Superior
County: Alameda
Judge: Larry J. Goodman
__________________________________________________________________________________
Attorneys for Appellant:
J. Bradley O’Connell, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Ronald A. Bass and Gerald A. Engler, Assistant Attorney General, Stan M.
Helman, Eric D. Share and Amy Haddix, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
J. Bradley O’ConnellFirst District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA 94107
(415) 495-3119
Amy Haddix
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5893
Date: | Docket Number: |
Thu, 05/26/2005 | S117370 |
1 | Randle, Darryl (Defendant and Appellant) Represented by J. Bradley O'Connell 1st District Appellate Proj 730 Harrison St #201 San Francisco, CA |
2 | The People (Plaintiff and Respondent) Represented by Amy Haddix Ofc Attorney General 455 Golden Gate Ave #11000 San Francisco, CA |
Disposition | |
May 26 2005 | Opinion: Affirmed |
Dockets | |
Jul 9 2003 | Petition for review filed by A.G. for resp c/a rec req |
Jul 23 2003 | Received Court of Appeal record file jacket/briefs/sealed envelope/two envelopes of exhibits/two accordian files |
Jul 24 2003 | Answer to petition for review filed by counsel for appellant (Darryl Randle) |
Aug 27 2003 | Petition for Review Granted (criminal case) Votes: George, CJ., Kennard, Baxter, Chin, Brown and Moreno, JJ. Werdegar, J., was absent and did not participate. |
Sep 11 2003 | Counsel appointment order filed First District Appellate Project is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
Sep 23 2003 | Request for extension of time filed (AG) counsel for resp. (People) requests extension to October 27, 2003, to file the brief on the merits. *** granted *** order being prepared. |
Sep 26 2003 | Extension of time granted Respondent's time to serve and file the brief on the merits is extended to and including October 27, 2003. No further extensions will be granted. |
Oct 24 2003 | Request for extension of time filed counsel for resp. requests extension of time to 11-03-03 to file the opening brief. |
Oct 28 2003 | Extension of time granted Respondent's time to serve and file the brief on the merits is extended to and including November 3, 2003. No further extensions will be granted. |
Nov 3 2003 | Application to file over-length brief filed by counsel for respondent |
Nov 3 2003 | Received: Oversized brief counsel for resp. |
Nov 3 2003 | Filed: by counsel for resp. Request for Judicial Notice. |
Nov 12 2003 | Opening brief on the merits filed with permission by counsel for resp. (People) |
Dec 12 2003 | Request for extension of time filed counsel for appellant requests extension of time to January 12, 2004, to file the answer brief on the merits. |
Dec 18 2003 | Extension of time granted Appellant's time to serve and file the answer brief on the merits is extended to and including January 12, 2004. No further extensions will be granted. |
Jan 9 2004 | Request for extension of time filed counsel for aplt. requests extension of time to February 11, 2004, to file the answer brief on merits. |
Jan 14 2004 | Request Denied Appellant's request for extension of time to file answer brief on the merits to February 11, 2004 is Denied. |
Feb 6 2004 | Received: untimely answer brief on the merits from counsel for aplt. |
Feb 6 2004 | Application for relief from default filed counsel for aplt. (D. Randle) |
Feb 6 2004 | Application to file over-length brief filed by counsel for aplt. |
Feb 17 2004 | Answer brief on the merits filed with permission by counsel for aplt. (Darryl Randle) |
Mar 8 2004 | Received: from counsel for resp. (People) oversized reply brief. |
Mar 8 2004 | Application to file over-length brief filed by counsel for resp. |
Mar 12 2004 | Reply brief filed (case fully briefed) with permission by counsel for resp. (People) |
Nov 1 2004 | Filed: by counsel for aplt. Request to file Supplemental Brief based on People v. Robertson. |
Nov 3 2004 | Supplemental brief filed by counsel for aplt. (Darryl Randle) (with permission) |
Jan 27 2005 | Filed: by counsel for resp. (People) Application for leave to file supplemental brief w/ brief. |
Jan 31 2005 | Supplemental brief filed by counsel for resp. (People) with permission |
Feb 9 2005 | Case ordered on calendar 3/8/05 @9am, S.F. |
Feb 23 2005 | Filed: by counsel for aplt. (Randle) Pre-Argument Letter re New Authorities (29.1 (d)) |
Mar 8 2005 | Cause argued and submitted |
May 26 2005 | Opinion filed: Judgment affirmed in full and remanded for further proceedings. OPINION BY: Brown, J. ---- joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ. CONCURRING OPINION BY: Baxter, J. CONCURRING OPINION BY: Brown, J. |
Jun 28 2005 | Remittitur issued (criminal case) |
Jul 8 2005 | Received: receipt for remittitur from CA 1/1 |
Aug 10 2005 | Compensation awarded counsel Atty J Bradley O'Connell - First District Appellate Project |
Briefs | |
Nov 12 2003 | Opening brief on the merits filed |
Feb 17 2004 | Answer brief on the merits filed |
Mar 12 2004 | Reply brief filed (case fully briefed) |