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People v. Brooks

Supreme Court of California

May 31, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
DONALD LEWIS BROOKS, Defendant and Appellant.

          Posted 6/19/17 due to inadvertent omission

         Los Angeles County Super. Ct. No. PA032918

         ORDER MODIFYING OPINION AND DENYING REHEARING

         THE COURT:

         It is ordered that the opinion filed herein on March 20, 2017, and reported in the Official Reports (2 Cal.5th 674), be modified as follows:

         1. The last sentence of the first paragraph on page 688, which states “For the reasons that follow, we affirm the judgment, ” is modified so that the sentence reads:

         For the reasons that follow, we vacate the jury's finding that the murder was committed while defendant was engaged in the commission of kidnapping, but affirm the judgment in all other respects, including the sentence of death.

         2. On page 788, after the third full paragraph, add the following new subpart:

         E. Petition for Rehearing

         In a petition for rehearing filed after we issued our opinion in this matter, defendant raised a single claim asserting, for the first time, that the true finding on the kidnapping-murder special-circumstance allegation must be reversed because the trial court failed to instruct the jury that it could find the allegation true only if it found defendant had committed the kidnapping for an independent felonious purpose.

         Ordinarily, this court will not consider an issue raised for the first time in a petition for rehearing. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1013; County of Imperial v. McDougal (1977) 19 Cal.3d 505, 513.) As the Attorney General acknowledges, however, we have departed from our usual practice in some circumstances, particularly when the untimely claim arises in a case involving the death penalty. (See, e.g., People v. Malone (1928) 205 Cal. 29, 32-33; People v. Champion (1924) 193 Cal. 441, 450.) For example, in People v. Easley (1983) 34 Cal.3d 858, this court filed an initial opinion in a capital case affirming the judgment in its entirety. Before that opinion was final, however, we received an amicus curiae brief presenting issues that had not been raised by the parties or discussed in the opinion. We granted rehearing to consider the new issues. In our ensuing opinion, we explained that we took that unusual step because section 1239, subdivision (b) imposes on the court a duty “ ‘to make an examination of the complete record of the proceedings... to the end that it be ascertained whether defendant was given a fair trial.” ' ” (Easley, at p. 863.) In the circumstances presented here, in which a capital defendant has presented a meritorious claim that can be resolved solely on the basis of the appellate record, we find it appropriate to consider the new claim of instructional error raised in defendant's petition for rehearing. For the reasons that follow, we conclude that the trial court prejudicially erred by failing to instruct on the independent felonious purpose rule in connection with the kidnapping-murder special-circumstance allegation, and that the jury's true finding on that allegation must be vacated.

         As previously explained in this opinion (ante, at pp. 734-735), at the time of defendant's crimes in March 1999, a felony-murder special circumstance could apply only when it was shown “that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.” (People v. Mendoza, supra, 24 Cal.4th at p. 182; People v. Green, supra, 27 Cal.3d at p. 61.) With regard to a kidnapping-murder special-circumstance allegation specifically, a defendant had to have a “purpose for the kidnapping apart from murder.” (People v. Raley, supra, 2 Cal.4th at p. 902; accord People v. Brents, supra, 53 Cal.4th at p. 609.)

         The court in this case instructed the jury that to find true the kidnapping-murder special-circumstance allegation, the prosecution must prove that “1. The murder was committed while the defendant was engaged in the commission or attempted commission of kidnapping in violation of section 207; and [¶] 2. The defendant had the specific intent to kill.” (See CALJIC No. 8.81.17.1 (July 1999).) Neither party requested, and the court did not give, further instruction informing the jury that the allegation could not be found true if the kidnapping was merely incidental to the commission of murder.[13]

         This court has recognized that the independent felonious purpose rule is not an element of the special circumstance, on which a court must instruct in every case in which a felony murder special circumstance has been alleged. (People v. Kimble (1988) 44 Cal.3d 480, 501.) The rule “merely clarifies the scope of the requirement that the murder must have taken place ‘during the commission' of a felony.” (People v. Harris, supra, 43 Cal.4th at p. 1299; Kimble, at p. 501.) From this we have concluded that a trial court has no duty to instruct on the independent felonious purpose rule “unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony.” (People v. Monterroso (2004) 34 Cal.4th 743, 767; accord People v. D'Arcy (2010) 48 Cal.4th 257, 297; Kimble, at p. 503.) Put in affirmative terms, a court has a duty to instruct the jury, on its own motion, that the felony cannot have been merely incidental to the murder when there is evidence from which the jury could have inferred that the defendant did not have an independent felonious purpose for committing the felony. (People v. Riccardi (2012) 54 Cal.4th 758, 838.) Although the requirement of an independent felonious purpose is not an element of the felony-murder special circumstance ...


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