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Murder conviction must be reversed where jury relied on impermissible theory to convict

People v. Wear (Cal. Ct. App., Feb. 4, 2020, No. A152732) 2020 WL 549310

FACTS: Defendant James Wear and his friend, Brandon Lowell, arranged to meet an acquaintance, Ryan Rossknecht. Wear intended to buy or steal a gun from Rossknecht and possibly to supply him with heroin. During the meeting, an argument erupted and Rossknecht, who had two guns with him, shot Lowell once with one of them. Wear, who was unarmed, then seized that gun, shot Rossknecht twice with it, and fled with the other gun. Lowell and Rossknecht died of their injuries.

Wear was charged with the murders of both Lowell and Rossknecht. The jury was unable to return a verdict on Lowell’s murder.  But the jury found Wear guilty of first degree murder and found true an allegation that Wear personally and intentionally discharged a firearm causing the death of Rossknecht.  The jury was unable to return a verdict on a special-circumstance allegation that Wear murdered Rossknecht during a robbery. After Wear admitted two prior convictions, one of which was a strike, the trial court sentenced him to 80 years to life in prison.

APPEAL: On appeal, Wear claims there was insufficient evidence to convict him of first degree murder of Rossknecht on either of the theories presented: felony murder during a robbery and premeditated murder. The Court of Appeal concluded that there was sufficient evidence of felony murder but insufficient evidence of premeditated murder. Because the record affirmatively shows that some jurors convicted Wear based on the insufficiently supported premeditated-murder theory, the Court reversed the murder conviction.

A court reviews a claim that a conviction lacks sufficient evidence, by reviewing the whole record to determine whether there is substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The court reviews the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.’ ” (People v. Manibusan (2013) 58 Cal.4th 40.)

Under this deferential standard of review, a “defendant bears an enormous burden in claiming there is insufficient evidence” to support a conviction. (People v. Veale (2008) 160 Cal.App.4th 40.)

Premeditated murder and felony murder

“Murder is the unlawful killing of a human being … with malice aforethought.” (§ 187, subd. (a).) “All murder that is perpetrated by … willful, deliberate and premeditated killing … or that is committed in the perpetration of” certain specified felonies, including robbery, “is murder of the first degree.” (§ 189, subd. (a).) “Felony murder and premeditated murder are not distinct crimes, and need not be separately pleaded.” (People v. Nakahara (2003) 30 Cal.4th 705, 712.) Thus, “jurors need not unanimously agree on a theory of first degree murder as either felony murder or murder with premeditation and deliberation” in order to convict a defendant of that crime.

Premeditated murder and felony murder have different elements even though there is one statutory offense of murder.’ ” (People v. Benavides (2005) 35 Cal.4th 69, 101.) “In the context of first degree murder, ‘ “premeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” ’ ” (People v. Lee (2011) 51 Cal.4th 620, 636 (Lee).) The required mind state “is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death.” (People v. Chiu (2014) 59 Cal.4th 155, 166.)

In contrast, “[t]he felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant’s mental.) “For conviction, the prosecution must establish that the defendant, either before or during the commission of the acts that caused the victim’s death, had the specific intent to commit one of the listed felonies.” (People v. Lewis (2001) 25 Cal.4th 610, 642.)

Jury instructions on two theories of murder and presumption jury relief on factually valid theory

Generally speaking, “[w]hen a jury is instructed on two theories of first degree murder, a first degree murder verdict will be upheld [even] if there is insufficient evidence as to one of the theories.” (People v. Sandoval (2015) 62 Cal.4th 394, 424.) In such cases, where “the inadequacy of proof” as to one of the theories of first degree murder is “purely factual,” it is presumed that the jury is “fully equipped to detect” the deficiency and must have relied on the other, factually valid theory. (People v. Guiton (1993) 4 Cal.4th 1116.)

No presumption if record shows verdict rested on the inadequate ground

But this presumption does not apply if there is “an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton, supra, 4 Cal.4th at p. 1129.) Here, it is clear that some of the jurors accepted the premeditated-murder theory and others accepted the felony-murder theory. On the second day of deliberations, the jury sent a note to the trial court that stated, “The jurors are split over (1) malice aforethought [and] (2) felony murder. Some agree that (1) has been proven but not (2). Some believe (2) has been proven but not (1). Our understanding is that if all jurors agree to one or the other, this is sufficient to find the defendant guilty [of] the crime of murder in [the] first degree.” The court sent a response confirming that the jurors “[did] not all need to agree on the same theory” to convict Wear of first degree murder.

Thus, the record contains affirmative indications that some jurors convicted Wear of first degree murder based on the felony-murder theory and others did so based on the premeditated-murder theory. As a result, the court must reverse unless substantial evidence supports both theories. (See People v. Nelson (2016) 1 Cal.5th 513, 552.)

Neither party asked the court to exercise its authority to reduce Wear’s conviction to second degree murder. The Court left open question whether second degree murder is lesser included offense of first degree felony murder.