Metropolitan News-Enterprise


Tuesday, July 31, 2001


Page 3


Murder Conspiracy Defendant Off the Hook Thanks to Appellate Ruling


By a MetNews Staff Writer


A defendant whose conviction for conspiracy to commit second degree murder was reversed for trial error could not then be tried for conspiracy to commit first degree murder, after the originally charged crime was swept off law books by a Supreme Court ruling, this district’s Court of Appeal ruled yesterday.

In a stroke of good fortune for defendant Kenneth German, Div. Seven ruled that the 1998 ruling in People v. Cortez, 18 Cal.4th 1223, prevents retrial of the greater offense as well as the one abrogated by the high court.

In Cortez, the court ruled that all conspiracies to commit murder must necessarily be first degree.

German was impliedly acquitted of conspiracy to commit first degree murder when the jury convicted him of conspiracy to commit second degree murder, Justice Fred Woods wrote.

He rejected prosecutors’ attempts to argue that there was no such implied acquittal, but that the jury instead found the specific intent to agree and intent to kill—findings the court explained in the Cortez ruling are functionally indistinguishable” from the premeditation and deliberation required for the first degree charge.

“While the People’s argument would be persuasive in any case subsequent to Cortez, it is troubling here, where Cortez had not been decided at the time of trial, and contrary instructions were given to the jury,” Woods said. “Here the jury was told, in accordance with governing law at the time of trial, to affix the degree of conspiracy at first or second degree.  It was further instructed that first degree murder requires premeditation and deliberation, and was told to affix the degree of murder, the object of the conspiracy, at first degree if it found premeditation and deliberation present, and at second degree if it found such elements lacking.  Taken together, these instructions advised the jury it could find conspiracy to commit murder in the second degree on something less than premeditation and deliberation.”

In returning a verdict for the lesser included offense of conspiracy to commit murder in the second degree, Woods said, the court could only conclude that the jury impliedly acquitted defendant of the greater crime.

But Woods also noted that such a ruling is unlikely to recur. It could be reached only in the very limited circumstances of German’s case, in which a conviction came before Cortez and was reversed on appeal, and a post-Cortez effort to retry the defendant for conspiracy to commit first degree murder.

“We are also mindful that our opinion permits defendant to profit from the fortuitous events comprising the procedural history of this case,” Woods said, adding that the constitutional protections against double jeopardy mandate the result.

The case is German v. Superior Court, People RPI, B148154.


Copyright 2001, Metropolitan News Company