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Infirm Instruction Dooms Attempted Murder Convictions
By a MetNews Staff Writer
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Daniel Gonzalez, left, a professional boxer, is seen in a photo with his promoter, ex-champion Floyd Mayweather. The Court of Appeal on Tuesday affirmed the convictions of two men for the murder of Gonzalez but reversed attempted murder judgments relating to the shooting of two teenagers who were in Gonzalez’s company. |
A judge’s instruction that allowed jurors to find two defendants guilty on two counts of each of attempted murder under the legislatively abandoned “natural and probable consequences” theory has resulted in the Court of Appeal’s reversal of those convictions, over a dissent, but the justices were unanimous in affirming murder convictions, finding the instructional error to have been harmless under the circumstances.
Presiding Justice Kathleen O’Leary authored the majority opinion for the Fourth District’s Div. Three. Justice Joanne Motoike concurred in it and Justice Eileen C. Moore concurred and dissented.
Andre Dimitri Richee and Lee Albert Mooring stand guilty of the special-circumstances murder on Labor Day 2022 of professional boxer Daniel Gonzalez, a protégé of ex-champion Floyd Mayweather Jr. In a drive-by shooting, not only was Gonzales, 22, slain, but two teenagers were injured.
Attempted Murder Convictions
The Attorney General’s Office argued that the instructional error was harmless in connection with the attempted murders of the teenagers because the jury found, as to each defendant, that his act was willful, deliberate and premeditated, foreclosing “the possibility that these convictions were based on the imputed mental state of a co conspirator.” Rather, it maintained, the findings meant that each defendant personally harbored an intent to kill.
The office further contended that in light of the finding of willfulness, the rendering of CALCRIM No. 601 negates any possibility of imputed malice. That instruction says that the defendant “acted willfully if he intended to kill when he acted.”
O’Leary responded:
“The Attorney General’s argument overlooks the full scope of the trial court’s natural and probable consequences instruction. The jury was instructed under CALCRIM No. 417 that a conspirator was ‘criminally responsible for any act’ of a coconspirator that furthered the conspiracy and was a natural and probable consequence of its common plan or design. The jury could reasonably have understood this instruction to encompass not only the attempted murder charges, but also the willfulness, premeditation, and deliberation findings.”
Transferred Intent
She added:
“Even accepting the Attorney General’s position that CALCRIM No. 601 required finding each appellant’s own ‘inten[t] to kill when he acted,’ nothing in the instruction required finding intent to kill the attempted murder victims. Although the phrase ‘when he acted’ would logically refer to actions underlying each attempted murder count, the availability of a natural and probable consequences theory of attempted murder meant that these actions here could have been merely agreeing to murder Gonzalez. The jury could therefore have based its willfulness findings solely on appellants’ intent to kill Gonzalez. Because the transferred intent doctrine does not apply to attempted murder, the CALCRIM No. 601 findings would not support the attempted murder convictions absent the invalid natural and probable consequences theory.”
Under all of the circumstances, O’Leary said, “the Attorney General has not shown that the trial court’s instruction on the natural and probable consequences doctrine was harmless beyond a reasonable doubt as to appellants’ attempted murder convictions.”
With respect to the murder conviction, she wrote:
“[E]ven under the improper instruction, the jury’s necessary finding of a conspiracy to kill Gonzalez—combined with the undisputed fact that a coconspirator carried out the shooting—satisfied the legal requirements for appellants’ guilt under a valid theory of conspiracy to murder.”
Moore’s Opinion
Moore said in her partial dissent that under Penal Code §188(a)(3), as it now reads, “the malice required for murder or attempted murder (the nontarget offense), can no longer ‘be imputed to a person based solely on his or her participation in’ some other crime (the target offense).”
She argued:
“Here, the trial court erroneously instructed the jury on the now defunct natural and probable consequences doctrine. However, the court instructed the jury that the target offenses were either murder or attempted murder, which both require a finding of malice.
“Therefore, I would affirm the defendants’ convictions for both murder and attempted murder because it seems to me that the jury could not have imputed a finding of malice based on the wording of the instruction.”
The case is People v. Richee, 2025 S.O.S. 1347.
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