People v. Conely

California Court of Appeal May 13, 1975 No. Crim. 25800Published

Before: Compton

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Holding. A defendant cannot be held vicariously liable for the murder of an accomplice killed by a resisting victim during the commission of a felony unless the defendant or accomplice committed an act, beyond the felony itself, that involved a high probability of death and implied malice.

Issues

Whether a defendant can be charged with the murder of an accomplice killed by a resisting victim during a felony.
Whether the evidence supported a finding of implied malice sufficient to invoke vicarious liability for the death of an accomplice.

Disposition. affirmed

Quotations verified verbatim against the opinion

“defendant cannot be charged with being vicariously liable for the death of his partner in crime at the hands of the intended victim.”

“The evidence here does not establish the second requirement of Taylor-Gilbert that the act of defendant or his accomplice was one from which malice could be inferred.”

[807]

Opinion

COMPTON, J.

Defendant was charged in an information in count I with the crime of murder, in count II with forcible rape and in count III with burglary. The superior court granted defendant’s motion pursuant to Penal Code section 995 and ordered count I of the information set aside. The People appeal.

Facts

On March 28, 1974, at about 1 a.m., defendant in company with one Marcelino Perez went to the apartment of Susan Kirksey. Defendant resided in the same apartment building. Defendant knocked on Mrs. Kirksey’s door and identified himself as a neighbor. He ascertained from Mrs. Kirksey that her husband was not home. About five minutes later defendant again knocked and identified himself. Mrs. Kirksey opened the door and observed defendant and Perez standing in the hall.

After some, conversation defendant and Perez entered the Kirksey apartment. Defendant exhibited a knife and compelled Mrs. Kirksey to accompany him to his apartment where in the presence of Perez he forced Mrs. Kirksey to engage in sexual intercourse.

After the above events Mrs. Kirksey returned to her own apartment and locked the door. A short time later she heard defendant and Perez arguing in the hall. Mrs. Kirksey obtained a gun from a dresser and stood about 4 or 5 feet from the door. There then came a knock on the door and Mrs. Kirksey said “Get away from my door. I have a gun,” to which defendant replied “We’ll see about that.”

Immediately thereafter the door was broken open from the outside and Mrs. Kirksey could see Perez, who was apparently unarmed, standing in the door and defendant standing to one side. Perez entered the apartment and Mrs. Kirksey ordered him to stop. She pulled the trigger of the gun but it misfired. Perez continued to advance and Mrs. Kirksey again pulled the trigger. This time the gun went off killing Perez. Defendant was still standing by the door of the Kirksey apartment. Defendant was charged in count I of the information with the murder of Perez.

In ruling on the section 995 motion the trial court stated that the facts were insufficient to support the magistrate’s conclusion that defendant

People v. Conely

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COMPTON, J.

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