Metropolitan News-Enterprise


Friday, August 15, 2003


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High Court Says Personal Premeditation Not Required For Abettor of Attempted Murder to Get Life Sentence


By a MetNews Staff Writer


The life sentence permitted for “willful, deliberate, and premeditated” attempted murder can be meted out to an aider or abettor who did not personally act willfully and with deliberation and premeditation, the Supreme Court ruled yesterday.

As long the person who committed the attempt meets the requirements for a life sentence under Penal Code Sec. 664(a), the same sentence can be given to a defendant whose liability is derivative, the court said in a 5-2 ruling.

The decision affirms a December 2000 ruling by the Fifth District Court of Appeal, though on different grounds. The Fifth District had upheld the convictions and sentences stemming from violent confrontations in Fresno in 1995 between rival Hmong gangs on the basis that the trial judge’s error in failing to instruct jurors that personal willfulness, deliberation and premeditation were required was harmless.

The two defendants, Phia Lee, then 14, and Johnson Xiong, then 15, were charged with two counts of murder and seven counts of attempted murder.

Writing for the high court majority, Chief Justice Ronald M. George noted that the court had held in People v. Bright (1996) 12 Cal.4th 652 that the life penalty under Sec. 664(a) was a penalty provision, not an increased degree of the crime.

George wrote:

“[S]ection 664(a) states only that the murder attempted must have been willful, deliberate, and premeditated, not that the attempted murderer personally must have acted willfully and with deliberation and premeditation. Put otherwise, section 664(a) states that if the murder attempted was willful, deliberate, and premeditated, any ‘person guilty of that attempt’—not confined to persons who acted willfully and with deliberation and premeditation—’shall be punished by imprisonment...for life.’ Of course, a person may be guilty of attempted murder or indeed of any crime, on varying bases and with varying mental states, depending, for example, on whether he or she was a direct perpetrator or an aider and abettor or even a conspirator.”

George called “unpersuasive” defendants’ argument that the Legislature did not intend to apply the greater penalty to persons in whom the aggravating factors were not present.

He declared:

“[W]e conclude that the Legislature reasonably could have determined that an attempted murderer who is guilty as an aider and abettor, but who did not personally act with willfulness, deliberation, and premeditation, is sufficiently blameworthy to be punished with life imprisonment. Where, as in the present case, the natural-and-probable-consequences doctrine does not apply, such an attempted murderer necessarily acts willfully, that is with intent to kill. In addition, he or she also necessarily acts with a mental state at least approaching deliberation and premeditation....because he or she necessarily acts with knowledge of the direct perpetrator’s intent to kill and with a purpose of facilitating the direct perpetrator’s accomplishment of the intended killing. Punishing such an attempted murderer with life imprisonment would not run counter to section 664(a)’s purpose of making the punishment proportionate to the crime.”

The chief justice added:

“Of course, where the natural-and-probable-consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy. In light of such a possibility, it would not have been irrational for the Legislature to limit section 664(a) only to those attempted murderers who personally acted willfully and with deliberation and premeditation. But the Legislature has declined to do so.”

Justices Marvin Baxter, Janice Rogers Brown, Ming Chin and Carlos Moreno joined in George’s opinion.

Justice Joyce Kennard, joined by Justice Kathryn M. Werdegar, concurred in the result but said they would have reached it by the same route as did the Court of Appeal.

Kennard said Bright was dispositive, since “almost all penalty provisions and enhancements—unlike criminal offenses—apply only when the conduct of the defendant, not that of another perpetrator, is particularly reprehensible.”

The case is People v. Lee, 03 S.O.S. 4395.


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