People v. Landry

Decision Date10 August 1989
Docket NumberNo. H003859,H003859
Citation261 Cal.Rptr. 254,212 Cal.App.3d 1428
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Ernest LANDRY, Defendant and Appellant.

Henrikson & Gee and Kyle Gee, Oakland (Under appointment by the Court of Appeal), for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., Jeremy Friedlander, Deputy Atty. Gen., for plaintiff and respondent.

AGLIANO, Presiding Justice.

1. Introduction

Defendant Ernest Landry appeals from the judgment following a jury verdict finding him guilty of murder. Since the jury did not determine the degree of the murder, defendant is deemed convicted of second degree murder. ( §§ 187, 189, 1157; unspecified section references are to the Pen.Code.)

Defendant contends, inter alia, the jury instructions regarding second degree felony murder were erroneously overbroad in not precluding the jury's use of the wrong underlying felony. We agree and reverse the judgment since it appears defendant was prejudiced by this error.

2. Trial evidence

Around 10 p.m. on March 28, 1987, Willie Murphy, an apartment manager, left his apartment to investigate what sounded like an automobile accident. He joined Reginald Brown, the assistant apartment manager, and his minor son, on their way to the source of the sound. When the three returned to the apartment complex, defendant, standing with two other men, asked Murphy in a normal tone of voice if the police were out front. Murphy did not respond and kept walking back to his apartment. Defendant sarcastically proclaimed Murphy was the landlord and the police.

Defendant made increasingly angry remarks about Murphy's involvement with defendant's mother. Earlier that month, Murphy had served an eviction notice on defendant's mother. Later defendant had once aimed his hand like a pistol at Murphy.

As Murphy began to climb the stairs to his second-floor apartment, defendant called him "faggot" at least twice. Murphy twice told defendant to stay downstairs. After Murphy reached the second floor, he heard footsteps running up the stairs. Turning, he saw defendant and another man, later identified as Rocky Johnson, ascend the stairs while pulling pistols out of their waistbands. The third man with defendant did not climb the stairs.

Defendant pushed Murphy six feet back against his screen door and repeatedly hit his head with the gun, continuing his verbal abuse for half a minute. Johnson shoved his gun into Murphy's eye and ordered him not to move or he would blow his brains out.

Murphy saw his friend, Reginald Brown, climb the last few stairs and approach from his left. Johnson turned, trained his gun on Brown, and asked him what he intended to do. Brown began to retreat. Johnson killed Brown with one shot to the face. After the shot Johnson and defendant left quickly down the stairs.

The jury was advised defendant had already been convicted (at an earlier trial) of felony assault with a deadly weapon on Murphy due to this incident.

3. Prosecution's theories

The prosecutor contended defendant was guilty of second degree murder, asserting in opening argument, "There are three distinct legal theories on [defendant's] responsibility" for the death of Reginald Brown. "The first theory is the just, it's a straight old second degree murder. The second theory is, it is a felony murder. And the third theory is, it's a killing that happens during a conspiracy."

4. Jury instructions

The jury was asked to decide only whether defendant was guilty or not guilty of second degree murder. The jury was instructed in part as follows. Defendant was "accused of a felony violation of Section 187 of the Penal Code, murder." "In order to prove the commission of the crime of murder, each of the following elements must be proved. One, that a human [being] 1 was killed; two, that the killing was unlawful; and three, that the killing was done with malice aforethought or occurred during the commission or attempt to commit a felony inherently dangerous to human life. [p] Assault with a deadly weapon is a felony inherently dangerous to human life." (Prosecutor's instruction no. 17; CALJIC No. 8.10, 1983 version.) The elements of assault with a deadly weapon were described. (CALJIC No. 9.02.)

"Malice may be either express or implied. Malice is express when there is manifested an intention unlawfully to kill a human. [p] Malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [p] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought." (CALJIC No. 8.11, 1983 version.)

"A conspiracy is an agreement between two or more persons with the specific intent to agree to commit a public offense such as assault with a deadly weapon and with the further specific intent to commit such offense, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement." The defendant need not have committed the overt act so long as "he was one of the conspirators when such an act was committed." (CALJIC No. 6.10.5, 1976 version.) "If a number of persons conspire together to commit a felony inherently dangerous to human life, namely, assault with a deadly weapon, and if the life of another person is taken by one or more of them in the prosecution of the common design, and if such killing is done to further that common purpose or is an ordinary and probable result of the pursuit of that purpose, all of the coconspirators are deemed in law to be equally guilty of murder of the second degree, whether the killing is intentional, unintentional or accidental." (Prosecutor's instruction no. 22; CALJIC No. 8.33.) Other conspiracy instructions were also given. 2

"The act of aiding and abetting is a separate and distinct theory of liability from that of conspiracy. A person may aid and abet the commission of a crime, without having previously entered into a conspiracy to commit it. One may be an aider and abettor without being a conspirator." (Prosecutor's instruction no. 32.) "A person aids and abets the commission of a crime when he or she, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, encouraging or facilitating the commission of the offense, by act or advice aids, promotes, encourages or instigates the commission of the crime.... [p] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." (CALJIC No. 3.01, 1984 version.) "[T]hose who aid and abet the commission of the crime" are as guilty as "those who directly and actively commit the act constituting the crime. [p] One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any act that he knowingly and intentionally aided or encouraged." (CALJIC No. 3.00, 1987 version.) "If a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, a felony inherently dangerous to human life, namely assault with a deadly weapon, all persons who either directly and actively commit the act constituting such crime or who with knowledge of the unlawful purpose of the perpetrator of the crime aid and abet in its commission or, whether present or not, who advise and encourage its commission are guilty of murder in the second degree, whether the killing is intentional, unintentional, or accidental." (Prosecutor's instruction no. 31; CALJIC No. 8.34, 1974 version.)

"No person can be held responsible for a homicide unless the act of killing was either actually or constructively committed by him, that is, it must have been committed by his hand, or by someone acting in concert with him, or in furtherance of a common design or purpose." (Prosecutor's instruction no. 33.)

"It is not necessary that all jurors agree in the determination as to which theory or theories of murder have been proven so long as each juror is convinced beyond a reasonable doubt that the defendant is guilty of the crime of murder under any theory defined in these instructions." (Prosecutor's instruction no. 34.)

Defendant objected to this last instruction, drawn from People v. Milan (1973) 9 Cal.3d 185, and to instructions on second degree felony murder.

5. Jury deliberations

The jury began deliberating after lunch on January 6, 1988, and adjourned at 4:30 p.m. They resumed deliberations the next morning. In the early afternoon the jury asked in writing, "The 'malice aforethought' is a charge not understood by the Jury, as stated in the indictment. Instruction 17, item 3 uses additional language--(or occurred during the commission or attempt to commit a felony--). Can we use the additional language in Item 3 to determine our verdict?" After conferring with counsel, the court answered in writing: "Yes. This latter or additional language in Instruction # 17 refers to the felony murder rule. It is to be considered along with Instructions # 22 and 31. Under this theory of liability the prosecution need not establish 'malice aforethought[.]' [p] If this response raises further questions, please let me know[.]" Fifteen minutes later, the jury returned its verdict.

6. Statutory basis of second degree felony murder

Defendant contends there is no such crime in California as second degree felony murder since it is not proscribed by statute and there is no common...

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