People v. Cobas

ELKZNGTON, J.

Laveme Cobas came to her death about 9:30 a.m. on March 22, 1968, apparently by strangulation. Her ex-husband, defendant David Ray Cobas, was charged with her murder. A jury found him guilty of murder, second degree; the appeal is from the judgment thereafter entered on the jury’s verdict.

There were no eyewitnesses to the killing. However, at the trial the People produced substantial evidence, including an oral confession of Cobas, that he was the perpetrator.

Over the specific objection of counsel for Cobas the trial court gave the jury the following instruction: “[T]he unlawful killing of a human being with malice aforethought is murder of the second degree . . . when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life, such as an assault with force likely to produce great bodily injury.”

This instruction in effect told the jury that if Cobas had killed the victim, he was guilty at least of second degree murder. Her death was caused by strangulation, by definition and in the language of the instruction, an assault with “force likely to produce great bodily injury” (Pen. Code, § 245), a felony inherently dangerous to human life.

In

People

v.

Ireland,

70 Cal.2d 522, 539-540 [75 Cal.Rptr. 188, 450 P.2d 580], decided after the trial below, the giving of a near counterpart to the instant instruction was held to be error. The court stated that from it the jury “would have concluded that it should find defendant guilty of second

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degree murder if it found only that the homicide was committed in the perpetration of the crime of assault with a deadly weapon,” thus relieving the jury of the necessity of otherwise finding malice aforethought, a necessary element of the crime of murder.

Ireland

is clearly applicable to the case before us; the giving of the questioned second degree felony-murder instruction was error.