What is the test for deliberate, deliberate or even deliberate action in an assault case?

California, United States of America


The following excerpt is from People v. Cervantes, F073341 (Cal. App. 2018):

ineffectual act toward accomplishing the intended killing. [Citation.] ... [U]nlike murder, attempted murder is not divided into degrees. The prosecution, though, can seek a special finding that the attempted murder was willful, deliberate, and premeditated, for purposes of a sentencing enhancement." (People v. Mejia (2012) 211 Cal.App.4th 586, 605.)

" '[P]remeditation means " 'considered beforehand' " [citation] and deliberation means a " 'careful weighing of considerations in forming a course of action ...' " [Citation.] "The process of premeditation and deliberation does not require any extended period of time." ' " (People v. Salazar (2016) 63 Cal.4th 214, 245.) " 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....' " (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363.) Ultimately, a finding of deliberation and premeditation requires the existence of "preexisting reflection, of any duration." (People v. Solomon (2010) 49 Cal.4th 792, 813.)

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