I’m certain I see an ancient tree warrior in there, perhaps guarding the tree for centuries. His right arm is extended upward in a “Why I oughta” position, while his left is either scratching his lower back or perhaps holding onto the trunk of the tree.
So this is the second part of today’s posts, dealing with two separate murder cases. (Don’t be thrown by the case numbering. I recognized that case 000111 really brings nothing to the table–it was just a discussion of mootness, but no relief was granted in a case where the defendant wanted his day in court so he could clear his name, but the problem went away before he got to court, and the appellate court wasn’t going to provide a forum for a moot court. So I didn’t include it after all.)
Part of me feels like this is too much information, because I’m not writing a brief. But when I look at the snippets and explanations, I’m reminded that my whole purpose in summarizing unpublished opinions is to reflect their gold tidbits. Mostly pieces of jurisprudence that can crop up time and time again. Since it is not published, the facts of any case are pretty much irrelevant except to place the principals in context. And if you can learn the principles, it’s a bit like learning the times tables (“math facts,” I think my wife calls them from her teaching experience). Once you know them, they just roll off the tongue in many conversations. You don’t have to know whether the subject is dividing up the cupcakes among a dozen kids or how many bricks does it take to hold up a bookcase. You just know three kids get four each if you have a dozen thingies and three kids. In our context, you learn what the standard of review is for [pick a card any card and put it back in the deck], and you will impress the judge with your appellate or trial acumen.
Because both of these summaries are so long, I’ve taken the liberty to break some of the “Holding” parts into separate paragraphs. Maybe that will help ease the “so many words” shock.
Summary
The first case resulted in not a lot of relief. The court held that there was insufficient evidence to support the Lying in Wait allegation for first degree murder, but it concluded that other portions of the verdict necessarily showed that the jury also concluded there was premeditation and deliberation. Hence, first degree murder is first degree murder.
The second case resulted in a reversal of murder for insufficient evidence that the defendant was recklessly indifferent (the co-defendant was the actual killer). There were several major flaws in the abstracts of judgment (for both defendants). I stand by something I stressed in a previous post: We NEED to review abstracts of judgment, because mistakes really are quite common, and some of them are significantly damaging if relied on by a decision maker.
Case: 000110
The defendant was charged with first degree murder under two theories–deliberation and premeditation, and lying in wait. The jury was not required to agree unanimously on the theory. He was convicted of first degree murder, along with a count of attempted murder with premeditation and deliberation. We conclude that insufficient evidence supports the finding of lying in wait. One of the elements of lying in wait, namely, “a substantial period of watching and waiting for an opportune time to act,” is not supported by substantial evidence. That conclusion requires us to reverse the finding on the lying-in-wait special circumstance, but it does not require a reversal of the first degree murder convictions, as they are supported by the alternative theory of premeditation and deliberation.
First Holding: The lying-in-wait special circumstance requires an intentional murder, committed under circumstances that include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) a surprise attack on an unsuspecting victim from a position of advantage It includes the elements of first degree lying-in-wait murder but requires the additional element that the killing was intentional, not merely committed with implied malice. [See] PC 190.2(a)(15); People v. Flinner (2020) 10 Cal.5th 686, 74.
Second Holding: To support a finding of concealment of purpose, it is not required that a defendant be literally concealed from view before he attacks the victim. Rather, it is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct. The concealment, in that sense, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise. Concealment of purpose inhibits detection, defeats self-defense, and may betray at least some level of trust, making it more blameworthy than premeditated murder that does not involve surprise.
The lying-in-wait special circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one’s purpose, and wait and watch for an opportune moment to attack. To distinguish the circumstance from ordinary premeditation and deliberation, a distinct period of watchful waiting is required. “Watchful” does not require actual watching; it can include being alert and vigilant in anticipation of the victim’s arrival to take him or her by surprise. [See] People v. Barrett (2025) 17 Cal.5th 897, 966–967; People v. Duong (2020) 10 Cal.5th 36, 67; People v. Stevens (2007) 41 Cal.4th 182, 204; People v. Clark (2016) 63 Cal.4th 522, 629; People v. Nelson (2016) 1 Cal.5th 513, 551; People v. Streeter (2012) 54 Cal.4th 205, 247.
Third Holding: In assessing a challenge to the sufficiency of the evidence, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The same standard applies when examining the sufficiency of the evidence supporting a special circumstance finding. “Substantial evidence” includes circumstantial evidence and any reasonable inferences drawn from that evidence. [See] People v. Brooks (2017) 3 Cal.5th 1, 57.
Fourth Holding: A first degree murder verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. The appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory. In making that determination, we examine the entire record, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.
The defendant does not challenge the sufficiency of the evidence to support a finding of premeditation and deliberation. Thus, our inquiry is whether there is a reasonable probability that the jury returned a verdict of first degree murder based “solely” on lying in wait, rather than also on premeditation and deliberation. The jury’s express findings in connection with the attempted murder in count 2 preclude any reasonable probability the jury relied solely on lying in wait as the theory for first degree murder. [See] People v. Nelson (2016) 1 Cal.5th 513, 552 [affirming first degree murder based on sufficient evidence of premeditation and deliberation despite insufficient evidence to support lying in wait]; People v. Guiton (1993) 4 Cal.4th 1116, 1130.
Fifth Holding: The court committed harmless error under Chapman in declining the defendant’s request to instruct the jury on the theory of imperfect self-defense. Under the doctrine of imperfect self-defense. if a person kills in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter, not murder. [See] People v. Duff (2014) 58 Cal.4th 527, 561; People v. Rios (2000) 23 Cal.4th 450, 461; People v. Schuller (2023) 15 Cal.5th 237, 243; Chapman v. California (1967) 386 U.S. 18, 24.
Sixth Holding: The trial court was required to instruct on imperfect self-defense if there was substantial evidence to support the theory. “Substantial evidence” is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense of voluntary manslaughter was committed, but does not include evidence that is speculative, minimal, or insubstantial. [See] People v. Schuller (2023) 15 Cal.5th 237, 253; People v. Simon (2016) 1 Cal.5th 98, 132.
Seventh Holding: We review de novo a trial court’s decision not to give an imperfect self-defense instruction. When the record contains substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory amounts to constitutional error and is thus subject to review under the federal Chapman standard. Under the Chapman standard, reversal is required unless it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Though there was insufficient evidence of the watchful waiting to support a finding of lying in wait, the jury returned a finding that the murder was committed by lying in wait.
There was sufficient evidence of the aspects of lying in wait other than watchful waiting. Because of its true finding on lying in wait, the jury could not have found an imperfect self-defense in which the defendant used deadly force against the victim because he unreasonably believed that doing so was necessary to defend himself. [See] People v. Simon (2016) 1 Cal.5th 98, 133; People v. Schuller (2023) 15 Cal.5th 237, 243; Chapman v. California (1967) 386 U.S. 18; People v. Cruz (2008) 44 Cal.4th 636, 665 [a jury’s true finding on a lying-in-wait special circumstance negated any possibility that defendant was prejudiced from the failure to instruct on unreasonable self-defense theories of manslaughter]
Case: 000112
We affirm the judgment of conviction as to defendant A. We reverse defendant B’s count 1 felony murder conviction, and otherwise affirm his judgment. The People concede both abstracts of judgment must be amended; we agree and remand with directions. The People concede and we agree the abstracts of judgment erroneously state that the convictions in counts 2, 4, and 6 are for first degree robbery. Both defendants were charged with second degree robbery, and the juries were instructed only on that theory. There are several other errors in the abstracts of judgment that must be corrected.
First Holding: When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [See] People v. Navarro (2021) 12 Cal.5th 285, 302; People v. Albillar (2010) 51 Cal.4th 47, 60.
Second Holding: Defendant A [the actual killer] contends there was no evidence he aided and abetted Defendant B in the count 6 robbery and count 7 assault. A person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. Mere presence at the scene of a crime or knowledge of, but failure to prevent the crime, are not sufficient to establish aiding and abetting its commission. However, factors which may be considered to determine aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the offense. [See] People v. McCoy (2001) 25 Cal.4th 1111, 1117; People v. Hill (1998) 17 Cal.4th 800, 851; People v. Campbell (1994) 25 Cal.App.4th 402, 409 .
Third Holding: Section 189(e) provides that a participant in a specified felony is liable for murder for a death during the commission of the offense only if one of the following is proven: (1) The person was the actual killer. (2) The person, with the intent to kill, aided, abetted, or assisted the actual killer. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life. [See] PC 189(e).
Fourth Holding: There are several factors courts should consider in determining whether, under the totality of the circumstances, a defendant was a major participant in the underlying felony who acted with reckless indifference to human life: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? Reckless indifference and the element of major participant significantly overlap, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life. [See] People v. Banks (2015) 61 Cal.4th 788, 803; People v. Clark (2016) 63 Cal.4th 522, 615.
Fifth Holding: Defendant B was not the actual killer, but was convicted on the basis of felony murder (item (3)). We need not decide whether, under the circumstances of this case, defendant was a major participant because we conclude that the evidence was insufficient to support that he exhibited reckless indifference to human life. The actus reus for the felony-murder aider and abettor special circumstance requires more than simply being an aider and abettor of the underlying felony under section 31. The special circumstance requires that the defendant be a major participant in the underlying felony.
Likewise, the mens rea requirement for the felony-murder aider and abettor special circumstance is different from that required for first degree felony murder. The special circumstance requires that the defendant have reckless indifference to human life. A defendant’s knowing participation in a robbery with others who are armed is insufficient, without more, to prove the defendant acted with reckless indifference to human life. Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient, because a defendant must knowingly create a grave risk of death through the defendant’s own actions. Reckless indifference encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of the defendant’s actions. Reckless indifference to human life has both a subjective and an objective element [See] People v. Clark (2016) 63 Cal.4th 522, 615-617; People v. Banks (2015) 61 Cal.4th 788, 794, 807-810; People v. Strong (2022) 13 Cal.5th 698, 706; In re Scoggins (2020) 9 Cal.5th 667, 677.
Sixth Holding: In committing the count 1 felony robbery, Defendant A entered the convenience store alone, and therefore Defendant B had no opportunity to restrain him, or to aid the victim. The evidence does not prove beyond a reasonable doubt that Defendant B was aware, when they left the third convenience store, that Defendant A had killed the victim. This factor weighs against a finding of reckless indifference. Defendant B had no meaningful opportunity to aid the victim before the shooting.
However contemptible the court may find a defendant’s conduct following a killing, the governing standard is not satisfied by evidence that the defendant was generally indifferent to the fact that someone has been killed. It requires evidence that, at the time of the shooting, the defendant acted with indifference toward the grave risk that someone could be killed. Though the former may be evidence of the latter, it is insufficient, standing alone, to support murder liability. While it is true a defendant’s willingness to engage in an armed robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a grave risk of death, no evidence was presented at trial that Defendant A was known to have a propensity for violence, let alone evidence indicating that Defendant B was aware of such a propensity. [See] People v. Emanuel (2025) 17 Cal.5th 867, 894-895; Tison v. Arizona (1987) 481 U.S. 137, 157.
Seventh Holding: The abstracts of judgment contain several errors that must be corrected. The abstracts of judgment erroneously state that the convictions in three counts are for first degree robbery. The verdict forms do not specify the degree of the robberies. But under California law, upon the failure of the jury or the court to determine the degree of the crime of which the defendant is guilty, it shall be deemed to be of the lesser degree. Therefore, we conclude that the robberies in the three counts are in the second degree.
The jury convicted both defendants of being a felon in possession of a firearm and not a “convicted felon and narcotic” as stated in the abstracts of judgment. As to Defendant A, the abstract of judgment shows the court imposed a consecutive full term of three years for one of the counts. However, the court orally stated, “Under [that count], the court is going to use one-third the midterm for that charge of one year, and that will run consecutive to the determinate terms under [two other counts].” Given this discrepancy, the oral pronouncement of judgment controls. [See] PC 1157; People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.