Nature of the Case
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Facts
D was in Sparks, Nevada, living out of his truck and picking up occasional odd jobs. He met Morris Wade. D told Wade about his relationship with Martha, a married woman in Fresno. Martha's husband Billy was 'in the way' and D wished Billy were dead. D offered Wade $5,000 to kill Billy. Wade said it was not enough to kill someone. D subsequently offered Wade $20,000 upon receipt of the proceeds from Billy's life insurance policy. Wade often served as an informant for various law enforcement agencies. Wade contacted the police and was referred to Walt Kubas, a special agent for the California Department of Justice. Wade would introduce Kubas to D as an assistant capable of carrying out the arrangement to kill Billy. Kubas was introduced to D. D began discussing the proposed murder plan. He described items of property, such as a gun collection and MG Roadster, which he expected to find at Billy's house, and said Kubas could take whatever he thought he could resell. D confirmed that he would be willing to pay $20,000 when he received the proceeds from Billy's insurance policy or the sale of Martha's mother's house. D specified he needed to be sure Martha would be out of town when the murder occurred and wanted the murder to look as if it had been committed during a burglary. All three drove to Fresno. D bought a map on which he wrote Billy's address and drew directions to the house. Kubas and D drove to Billy's residence and discussed how Kubas could enter the house without being observed. Kubas insisted that D sign a promissory note for $20,000. D finally signed one written by Kubas which stated, 'I, John Bottger, owe Walt $ 20,000. $ 20,000 payable by January 1st, 1982, for services rendered.' Kubas took D to the bus station and bought him a ticket back to Nevada. They parted after agreeing defendant would call Kubas that Sunday at 5 p.m. and confirm that Martha was not at the Fresno residence before Kubas executed the plan. D never called. That Wednesday, Kubas approached D and said, 'I think you forgot something.' D said that he had overslept, and asked whether everything had gone smoothly. When Kubas answered, 'Yes, he's deader than a door nail,' D smiled but said nothing. D was arrested. D claimed Wade initiated the plan to kill Billy and persisted in discussing it until D capitulated and allowed him to proceed with the scheme. d maintained he never intended to have Billy killed, although he admitted telling Kubas he wished Billy were dead. D claimed Wade initiated the plan to kill Billy and persisted in discussing it until D capitulated and allowed him to proceed with the scheme. d maintained he never intended to have Billy killed, although he admitted telling Kubas he wished Billy were dead. Because Wade had told D that he knew people in the Mafia, D was afraid to cancel the plans. D also felt threatened when Kubas told him there would be no backing out. Since Wade and Kubas were so involved in the scheme, D decided to cooperate and never expressed his reservations. D testified he was to call Kubas to tell him to carry out the plan; if he did not call, the deal was off. At the truck stop when Kubras asked him why he had not called, D told him he had not made the phone call because he had canceled the plan. D was convicted of solicitation for murder and appealed. D contends the trial court erred by instructing the jury on implied malice. He argues that by giving those instructions, the court may have led the jury to believe it could imply malice and find D guilty without determining defendant had the specific intent to kill.
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