California, United States of America
The following excerpt is from People v. Gonzalez, 233 Cal.Rptr.3d 791, 418 P.3d 841, 5 Cal.5th 186 (Cal. 2018):
force or fear other than a firearm. (Maj. opn., ante , 233 Cal.Rptr.3d at pp. 806807, 418 P.3d at p. 854.) But no evidence or argument at trial supports this theory. The court also suggests the jury may have believed that defendants knew "the robbery of a drug dealer who had been physically violent towards Estrada in the past carried a grave risk of death." (Maj. opn., ante , 233 Cal.Rptr.3d at p. 807, 418 P.3d at pp. 854.) Yet the court cites no evidence in support of this theory either. It is true that the prosecution in closing argument pointed to the "inherent risk" of robbing "a drug dealer on the side of the street" as opposed to "a jewelry store or a bank." But given that "the risk of death inherent in an armed robbery" is not sufficient to establish reckless indifference to human life ( People v. Banks (2015) 61 Cal.4th 788, 808, 189 Cal.Rptr.3d 208, 351 P.3d 330, italics added), how could the jury have properly inferred the required mens rea from the risk inherent in an unarmed robbery of a drug dealer? It is far more straightforward to conclude, in light of the evidence and argument at trial, that the jurys findings on the aiding and abetting special circumstance and the firearm-related charges are simply inconsistent.
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