P. v. Carter
Defendant Donald Carter, charged with felony murder and the special circumstances of killing 80-year-old Sophia McAllister while burglarizing, robbing, and raping her, testified that he broke into her house to get the money he desperately needed to buy more rock cocaine. He admitted he intended to commit the three felonies, albeit in his drug induced, crazy state of mind, but he denied intending to kill her. He reverses his defense on appeal, now suggesting that the jury might have found that the three felonies were only incidental to his plan to murder Mrs. McAllister.
The distinction is, in fact, pivotal. Defendant asserts the trial court failed to instruct the jurors sua sponte that the prosecution had to prove that the murder was carried out to advance the commission of the burglary, robbery, and rape or, in other words, that they could not find the special instruction to be true if the commission of the three felonies was merely incidental to the commission of the murder. He offers a clever and legally sound assault on the instruction delivered by the court, an argument the Attorney General does not appear to understand or rebut. It is, however, a Pyrrhic victory; he wins on the law and loses on the facts. Because there is not significant evidence that he intended to murder Mrs. McAllister and the other felonies were merely incidental to his plan to murder, the trial court was not obligated to give the so-called Green instruction sua sponte. (People v. Green (1980) 27 Cal.3d 1, 59-62 (Green), superseded by statute on other grounds as stated in People v. Alcala (1984) 36 Cal.3d 604, 621-622 & fn. 8.) We affirm.
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