36 Cal. App. 5th 245
Cal. Ct. App. 5th2019Background
- In February 2003 McShane discovered three teens attempting to steal his truck after his 15-year-old daughter had run away; he chased them across a field and fatally shot 15-year-old Jerel Cobbs. McShane said he fired to protect his son and did not intend to kill.
- At trial McShane admitted recent marijuana use; defense experts diagnosed bipolar-related disorder and testified about extreme anxiety and impaired cognition; prosecution experts disputed a mental disorder diagnosis.
- McShane was convicted of second‑degree murder with a firearm enhancement and sentenced to 40 years to life; after appeals and a federal habeas reversal on ineffective assistance issues, he was retried and reconvicted in 2017.
- On appeal McShane argued (1) the trial court should have instructed the jury on voluntary manslaughter based on heat of passion, (2) the jury should have been told it could consider voluntary intoxication regarding intent, (3) he was entitled to remand under new Penal Code §1001.36 for pretrial mental‑health diversion, and (4) he was entitled to remand under SB 620 to consider striking the firearm enhancement.
- The court rejected the instruction and diversion claims, finding insufficient evidence of adequate provocation and that statutory changes did not entitle him to diversion; it agreed a remand was required to allow the trial court to consider striking the firearm enhancement under the newer statute.
Issues
| Issue | McShane's Argument | People / Prosecution Argument | Held |
|---|---|---|---|
| Failure to instruct on heat‑of‑passion voluntary manslaughter | Trial court should have instructed because combined events (earlier altercation + truck theft) amounted to continuing provocation | Evidence did not show adequate provocation or that McShane acted while actually under a sudden, intense passion; four‑day gap cooled the earlier incident | Instruction not required; any error harmless under state standard |
| Jury instruction on voluntary intoxication and intent to kill | Jury should be allowed to consider voluntary intoxication in assessing specific intent to kill | No reversible error shown; intoxication evidence insufficient to undermine intent finding | Claim rejected (not accepted as grounds for reversal) |
| Retroactive application of Penal Code §1001.36 (mental‑health diversion) | Entitled to remand because the statute is ameliorative | Even if ameliorative, the later amendment excluded murder; exclusion can apply and does not violate ex post facto/retroactivity principles | Remand for diversion denied; murder exclusion bars relief |
| Senate Bill 620 (striking firearm enhancement) | Requested relief under new law to reduce or strike firearm enhancement | Court must consider resentencing under amended law | Sentence vacated as to firearm enhancement and remanded for the court to consider striking the enhancement; conviction affirmed |
Key Cases Cited
- People v. Williams, 61 Cal.4th 1244 (discusses standard for when lesser‑included offense instructions are required)
- People v. Breverman, 19 Cal.4th 142 (error in failing to give heat‑of‑passion instruction is state‑law error subject to Watson harmless‑error review)
- People v. Beltran, 56 Cal.4th 935 (explains objective/subjective components of heat of passion and that provocation must be extreme)
- People v. Moye, 47 Cal.4th 537 (provocation distinguishes heat‑of‑passion manslaughter from murder)
- People v. McKinney, 95 Cal.App.3d 712 (illustrates retroactivity/exclusions of ameliorative statutes when later restored)
- In re Vicks, 56 Cal.4th 274 (explains ex post facto/retroactivity analysis focusing on the timing of criminal conduct)