In re Lombardo CA3

Filed 2/3/23 In re Lombardo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

In re VINCENT LOMBARDO on Habeas Corpus, C096314

(Super. Ct. No. NCR41795)

In 1996, a jury convicted petitioner Vincent Lombardo of second degree murder. 1 The jury found petitioner not guilty of robbery. In his direct appeal, he argued the jury instructions on second degree felony murder violated the so-called “merger doctrine” set forth in People v. Ireland (1969) 70 Cal.2d 522 (Ireland). The People conceded the instructional error, but argued petitioner waived it under the invited error doctrine. Petitioner conceded the error had been waived, and, accordingly, we held any error was waived. In this habeas proceeding, petitioner again argues the second degree felony murder instructions violated the merger doctrine.

1 Petitioner requested we take judicial notice of the appellate record in People v. Lombardo (May 6, 1998, C024077) [nonpub. opn.]. We now grant that request.

1

A different panel of this court issued an order to show cause why the relief prayed for should not be granted. However, the authority petitioner relies on to justify reasserting a claim previously rejected on direct appeal is only further support for the originally conceded point that the second degree felony murder instruction violated the merger doctrine. Therefore, we deny the writ petition. I. BACKGROUND A. Factual Background As we described in our original opinion, petitioner and three others joined the victim for a drink under a bridge. A fight broke out between the victim and the others that ended in the victim’s death. Petitioner joined in kicking and beating the victim. Evidence was presented that, as the attackers walked away from the victim, one of them said he had cut his hand while stabbing the victim 27 times. Petitioner testified he had not previously known about the use of the knife. A stab wound to the heart caused the victim’s death. B. Legal and Procedural Background A brief historical overview of second degree felony murder is necessary to contextualize these proceedings.2 “[T]he crime of murder, as defined in [Penal Code] section 187, includes, as an element, malice.[3 ] Section 188 defines malice. It may be either express or implied. It is express ‘when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ (§ 188.) It is implied ‘when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).) Implied malice has