People v. Smith CA2/4

Filed 5/23/24 P. v. Smith CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B321024 Los Angeles County Plaintiff and Respondent, Super. Ct. No. A711739

v. ORDER MODIFYING OPINION AND DENYING DONALD FRANKLIN SMITH, PETITION FOR REHEARING Defendant and Appellant. NO CHANGE IN JUDGMENT

THE COURT*:

This court has received the petition for rehearing filed by respondent on May 13, 2024. This court’s opinion, filed April 26, 2024, is modified to add the following paragraph to the end of the discussion on page 5: After we modified this opinion in response to Smith’s petition for rehearing, the Attorney General also moved for rehearing, arguing Smith is guilty of murder under current law under the transferred intent doctrine. Under the transferred intent doctrine, “a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same

criminal liability that would have been imposed had ‘the fatal [shot] reached the person for whom [it was] intended.” (People v. Bland (2002) 28 Cal.4th 313, 321.) The transferred doctrine is irrelevant to the present inquiry, however. The prosecutor did not argue transferred intent at trial and the jury was not instructed on that theory. But the jury was instructed on the now-discarded natural and probable consequences doctrine. As noted above, this leaves open the possibility that the jury convicted Smith of murder on count four under the natural and probable consequences doctrine. We therefore remand the matter for an evidentiary hearing on that count. This modification does not change the judgment. The petition for rehearing is DENIED.

____________________________________________________________ CURREY, P. J. COLLINS, J. MORI, J.

2

Filed 4/26/24 P. v. Smith CA2/4 (unmodified opinion) Opinion following rehearing NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).