P. v. Neal
A jury convicted Charles Neal of second degree murder (Pen. Code, § 187,
subd. (a); count 1),[1] and shooting at an inhabited structure (§ 246; count 2). The jury determined Neal committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and a principal used and discharged a firearm in the crimes, causing the death of another person (§ 12022.53, subds. (d), (e)). The jury found Neal not guilty of first degree murder as charged in count 1. The court sentenced Neal to state prison for a total of 40 years to life, consisting of 15 years to life for count 1, plus a consecutive 25-year term for the firearm enhancement on that count. The court stayed sentencing on count 2. (§ 654.)
The prosecution's theory was that Neal's codefendant, Maurice Tucker, was the shooter and Neal had derivative liability for both crimes as a coconspirator.[2] On appeal, Neal claims the trial court committed prejudicial error by instructing the jury on a legally invalid theory of implied malice second degree murder. Under California Supreme Court authority, we agree. (People v. Swain (1996) 12 Cal.4th 593, 601 (Swain); People v. Cortez (1998) 18 Cal.4th 1223, 1237-1238 (Cortez).) We reverse the judgment.
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