44 Cal.App.5th 1007
Cal. Ct. App.2020Background
- On March 1, 2015 Wear and his friend Lowell met acquaintance Rossknecht in a meeting set up as a gun sale; Wear and Lowell were unarmed. An argument ensued, Rossknecht shot Lowell once, then Wear seized Rossknecht’s gun, shot Rossknecht twice, and fled with a second gun; both victims died.
- Wear sent a text about “hittin a lick” shortly before the meeting; police investigator testified that phrase is slang for robbery. Wear was later arrested with drugs and two cell phones; he had heroin and methamphetamine in his system.
- Physical evidence: two revolvers found (a Smith & Wesson and a Ruger), gunshot residue on all three men, DNA/blood consistent with struggle, and close-range wounds to Rossknecht’s head.
- Jury convicted Wear of first degree murder of Rossknecht and found true a personal-discharge firearm allegation; jury was unable to reach verdict on the robbery special-circumstance and the separate murder charge for Lowell.
- On appeal Wear challenged sufficiency of evidence for first degree murder under two theories—felony murder (robbery) and premeditation/deliberation. The Court of Appeal held felony murder supported but premeditation was not, and reversed because the jury had affirmatively split between the two theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency for first-degree murder under felony-murder (robbery) theory | Evidence showed Wear intended to commit a robbery: his “hittin a lick” text, the meeting was to obtain a gun, and he fled with Rossknecht’s Ruger. | Meeting was a gun sale, Wear came unarmed and took the Ruger as a panicked afterthought during a struggle—no preexisting intent to steal. | Substantial evidence supports felony murder based on robbery (intent to steal may be inferred from texts and conduct). |
| Sufficiency for first-degree murder under premeditation/deliberation theory | Manner of killing (two close-range head shots, one possibly execution‑style) and prior threats support premeditation. | No planning evidence, weak motive, critical text about killing was shown out of context and is equivocal; killing more plausibly impulsive after Lowell was shot. | Insufficient evidence of premeditation and deliberation. |
| Whether conviction must be reversed when the jury was split between theories | If at least one valid theory is supported, the verdict may stand. | Reversal required if record affirmatively indicates some jurors relied on an invalid theory. | Reversal required here because jury notes and mistrials show jurors were explicitly split and some relied on the unsupported premeditation theory. |
| Remedy / disposition | (AG) Ask affirmance or remand for retrial as permitted. | (Wear) Seek reversal and possible reduction; trial counsel ineffective-assistance claims also raised separately. | Judgment reversed; court declined to exercise section 1260 authority to reduce to second degree; retrial limits left open. |
Key Cases Cited
- People v. Anderson, 70 Cal.2d 15 (Cal. 1968) (Anderson test for proving premeditation/deliberation using planning, motive, and manner-of-killing factors)
- People v. Potts, 6 Cal.5th 1012 (Cal. 2019) (distinguishes theft-from-after-force and robbery intent; intent to steal must exist before or during fatal assault)
- People v. Lewis, 25 Cal.4th 610 (Cal. 2001) (felony-murder requires specific intent to commit the predicate felony before or during the killing)
- People v. Guiton, 4 Cal.4th 1116 (Cal. 1993) (jury need not unanimously agree on the theory of first-degree murder unless record shows reliance on an invalid theory)
- People v. Sandoval, 62 Cal.4th 394 (Cal. 2015) (if one theory is factually inadequate, verdict may stand absent affirmative indication jury relied on it)
- People v. Lee, 51 Cal.4th 620 (Cal. 2011) (definition and requirements for premeditation and deliberation)
- People v. Smith, 37 Cal.4th 733 (Cal. 2005) (purposeful close‑range shooting supports inference of express malice)
- People v. Banks, 59 Cal.4th 1113 (Cal. 2014) (brutality alone is insufficient to establish premeditation; requires more reflection than intent to kill)