People v. Landry
Decision Date | 10 August 1989 |
Docket Number | No. H003859,H003859 |
Citation | 261 Cal.Rptr. 254,212 Cal.App.3d 1428 |
Court | California Court of Appeals Court of Appeals |
Parties | The 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.
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.
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.
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 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." (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.)
(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
(Prosecutor's instruction no. 32.) (CALJIC No. 3.01, 1984 version.) "[T]hose who aid and abet the commission of the crime" are as guilty as (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.
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, After conferring with counsel, the court answered in writing: Fifteen minutes later, the jury returned its verdict.
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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