19 Cal.App.5th 660
Cal. Ct. App.2018Background
- On Aug. 11, 2013 Eric David Robbins, after a confrontation with security guard Clarence Jones at an AM/PM, went to a field, set up a scoped .308 rifle, and shot at the store; Daniel Olivera was killed. Robbins later said he intended to kill Jones and mistakenly shot Olivera.
- A jury convicted Robbins of first‑degree murder (lying in wait), attempted murder (of Jones), and found true firearm discharge enhancements.
- Trial court sentenced Robbins to life without parole (LWOP) plus consecutive 25 years‑to‑life for the firearm enhancement on the murder; attempted murder was sentenced as 7 years‑to‑life plus a consecutive 25 years‑to‑life enhancement, concurrent to the LWOP.
- Robbins appealed raising nine issues including sufficiency of evidence for attempted murder of Jones, applicability of transferred intent to lying‑in‑wait, refusal to instruct heat‑of‑passion manslaughter/attempted manslaughter, ineffective assistance for not seeking provocation instruction, alleged prosecutorial elicitation of testimony about racist stickers, cumulative error, sentencing errors for attempted murder term, and whether the court must be allowed to strike firearm enhancements.
- The Court of Appeal affirmed convictions, held substantial evidence supported attempted murder (transferred intent applies), rejected heat‑of‑passion instruction claims and ineffective assistance claim, found no prosecutorial misconduct, but reversed sentencing errors: attempted murder should be life with parole and remanded for the trial court to exercise discretion under newly effective § 12022.53(h) to strike firearm enhancements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted murder of Jones | Prosecutor: Robbins confessed intent to kill Jones and acted (shot) at whom he believed was Jones; that supports attempted murder. | Robbins: Single bullet struck a different person (Olivera), so only one completed murder, no attempted murder of Jones. | Affirmed: Substantial evidence; transferred intent/mens rea can support attempted murder of intended victim despite killing another. |
| Transferred intent and lying‑in‑wait special circumstance | People: Transferred intent applies because lying‑in‑wait requires the same deliberate/premeditated intent that can transfer to an unintended victim. | Robbins: Lying‑in‑wait requires intent to kill the specific victim, so transferred intent should not create the special circumstance. | Held transferred intent applies to lying‑in‑wait (intent equivalent to premeditation/deliberation transfers). |
| Heat‑of‑passion (voluntary manslaughter) instruction | N/A (People maintained evidence did not support adequate provocation reducing murder.) | Robbins: Provocation by Jones (denial of entry, touching/swiping at door) warranted instruction on heat‑of‑passion manslaughter and attempted manslaughter. | Court rejected: Objective reasonable‑person standard not met; refusal to instruct was proper. |
| Ineffective assistance for not requesting provocation→degree instruction | N/A (People argued counsel reasonably pursued stronger intoxication theory). | Robbins: Counsel should have requested instruction on how provocation negates premeditation (reducing 1st to 2nd degree). | Denied: Strategic choice to emphasize intoxication was reasonable; no showing of deficient performance or prejudice. |
| Prosecutorial conduct re racist/sticker testimony | People: Prosecutor did not solicit swastika evidence and could not have anticipated nonresponsive answers; no misconduct. | Robbins: In limine order barred references to racist affiliations; witnesses’ testimony about swastika violated that order and prosecutor failed to control witnesses. | Held no prosecutorial misconduct shown; court admonished jury and record supports prosecutor did not intentionally elicit. |
| Cumulative error | People: No prejudicial error to cumulate. | Robbins: Multiple alleged errors require reversal in combination. | Denied: No errors found to accumulate. |
| Sentencing for attempted murder term | People (on appeal): trial court misapplied statutory term; concedes correction needed. | Robbins: attempted murder that was willful, premeditated and deliberate requires life with possibility of parole. | Reversed and remanded: attempted murder sentence vacated; court directed to impose concurrent life with parole for count 2. |
| Discretion to strike firearm enhancements (§ 12022.53(h)) | People: New subdivision vests sentencing court discretion and applies retroactively to nonfinal sentences. | Robbins: requests remand to allow court to consider striking enhancements. | Reversed and remanded: sentencing court must exercise discretion under § 12022.53(h); if enhancements not struck, resentence accordingly. |
Key Cases Cited
- People v. Bland, 28 Cal.4th 313 (explain transferred intent can create multiple inchoate/consummated crimes from one mental state)
- People v. Scott, 14 Cal.4th 544 (transferred intent does not preclude charging attempted murder of intended victim)
- People v. Beardslee, 53 Cal.3d 68 (mistake of fact—guilt determined as if facts as defendant perceived them)
- People v. Sandoval, 62 Cal.4th 394 (lying in wait requires substantial watching/waiting; equivalent to premeditation/deliberation)
- People v. Sears, 2 Cal.3d 180 (deliberate premeditated intent can transfer when killing an unintended victim)
- People v. Breverman, 19 Cal.4th 142 (trial court must instruct on general legal principles closely connected to evidence)
- People v. Tully, 54 Cal.4th 952 (prosecutor not at fault for unforeseeable nonresponsive witness answers)
- People v. Wickersham, 32 Cal.3d 307 (provocation may negate deliberation/premeditation and raise reasonable doubt as to intent)
- People v. Islom, 240 Cal.App.4th 1146 (shooting at a target believed to be someone supports attempted murder when defendant believed he was shooting intended victim)