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People v. Morse1/9/1992
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN.
No. B042786
1992.CA.41274 ; 2 Cal. App. 4th 620; 3 Cal. Rptr. 2d 343
Decided: January 9, 1992.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DONALD LEE MORSE, DEFENDANT AND APPELLANT.
Superior Court of Los Angeles County, No. A778741, John H. Major, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Edward T. Fogel, Jr., Assistant Attorney General, William T. Harter, Jr., and Kristofer Jorstad, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Woods Fred, J., with Lillie, P. J., Concurring. Separate Concurring and Dissenting opinion by Johnson, J.
Woods
A jury convicted appellant of two counts of first degree murder (Pen. Code, § 187, 188, 189), one count of reckless or malicious possession of a destructive device (§ 12303.2), and found true both alleged special circumstances: multiple murder (§ 190.2, subd. (a)(3)) and murder by destructive device (§ 190.2, subd. (a)(4)). Appellant was sentenced to state prison for life without possibility of parole.
Appellant claims myriad errors. Principally: the trial court wrongfully excluded evidence of victim negligence relevant to proximate cause; and the trial court erroneously instructed the jury that if they found defendant had committed second degree murder, by law it becomes first degree murder.
We reject all appellant's claimed errors except one. We conclude the trial court erred in instructing the jury that they could use the crime of possession of a destructive device twice, first to find appellant had committed second degree murder, and second to convert that murder into murder of the first degree.
Factual Background
Summary
Two Los Angeles police officers were dismantling a bomb in appellant's garage when it exploded and killed them.
The prosecution theory was that appellant had made, possessed, and intended to use the bomb and thereby proximately caused the death of the two officers. There was no evidence appellant intended the death of the police- victims.
The defense challenged the sufficiency of the prosecution's evidence. Appellant did not testify.
Evidence appellant made, possessed, and intended to use the bomb
We synopsize the evidence with a perspective favoring the judgment. (People v. Barnes (1986) 42 Cal. 3d 284, 303-304 [228 Cal. Rptr. 228, 721 P.2d 110].)
Appellant lived in North Hollywood at 6849 Vanscoy. In the late 1970's he became friends with one of his neighbors, Al Ward. They went on bicycle
rides together and visited each other at their homes. Their wives were also good friends.
Sometime in October 1978 Mr. Ward went to appellant's house to go for a bike ride. Appellant showed Mr. Ward a used Xerox machine he had just bought and while they were in appellant's garage also showed him a book with descriptions of how to make a bomb. The book was gray with black binding, had sketches but was not "The Anarchist Cookbook" (a bomb-making book later recovered in
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 California DUI Attorneys
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