People v. Robertson

34 Cal.4th 156 (2004)

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Nature of the Case

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Facts

Victims Kehinde Riley and Ricky Harris, joined by Bradley Gentry and Lamont Benton in using alcohol, marijuana, and cocaine while they went for a drive-in Benton's automobile. They stopped in front of D's residence, and while Gentry and Benton looked on, Riley and Harris began removing the hubcaps on D's car, making loud noises in the process. They had removed the passenger side hubcaps and were turning to the driver side hubcaps when D emerged onto the porch of his residence. D had been watching television with his wife and children, heard a loud noise and, retrieving a firearm, went outside to investigate. He observed three or four men near his automobile, apparently engaged either in dismantling it or stealing it. D claimed that when he emerged from his residence, he held his gun at a 45-degree angle and fired two warning shots. The physical evidence, however, indicated that three shots had been fired. A bullet hole discovered in the windshield of D's automobile and two other bullet holes found two feet above ground level in a vehicle that was parked across the street tended to disprove D's claim that he had held the gun at a 45-degree angle. After the discharge, Benton and Gentry drove away, while Riley and Harris attempted to flee on foot. Benton testified he heard from seven to nine additional gunshots as he drove away. D admitted in his final statement to the police that he had walked at least as far as the sidewalk and possibly into the street before firing three shots at the fleeing men. He denied intending that the shots hit the men and claimed that he fired upwards into the air, intending, as he said, to scare people away from my domain. D conceded that firing a weapon in a residential neighborhood was dangerous to human life, but said he had not been thinking clearly. Riley's body was discovered approximately 50 yards from where gun casings indicated the firearm had been discharged. Riley had been shot in the back of the head. Harris suffered a gunshot wound to the sole of his right foot. A neighbor heard shots and witnessed a person standing in a firing stance in the street, firing shot after shot straight ahead and on each occasion correcting for the weapon's kickback. P's ballistics expert testified that if the person who fired the weapon had held it at a 45-degree angle, he or she would not have struck the victims. This witness testified that in his opinion, the shooter must have pointed the weapon at the victims. A clinical psychologist testified in D's behalf, expressing the opinion that D suffered from posttraumatic stress syndrome as a result of this and other incidents, that this condition caused D to be fearful and easily aroused emotionally, and that defendant likely had acted impulsively, without forethought, when he fired on the victims. The jury was instructed on first-degree murder, second-degree murder with express malice, second-degree murder with implied malice, second-degree felony murder based on commission of the crime of discharging a firearm in a grossly negligent manner, and voluntary manslaughter. D argued that, at most, D might be liable for voluntary manslaughter on the theory that he acted in the heat of passion or from an honest but unreasonable belief in the need to defend himself. D was convicted and appealed. D contends the trial court erred in instructing the jury on second-degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner, because, under the teaching of Ireland, the latter offense necessarily merged with the homicide. A majority of the Court of Appeal agreed, but determined that the error was harmless because, in view of the particular instructions given in the present case, the verdict finding D guilty of the aggravated assault on Harris also demonstrated that the jury necessarily rejected D's primary argument that when he shot the victims, he merely intended to frighten them away from his residence. The remaining justice concurred in the judgment only, concluding that it was unnecessary for the court to comment on the merger doctrine because any error was harmless.