 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Epps6/27/1986
to Penal Code section 190.2, subdivision (a)(17). Appellant's argument is based on two elements: (1) The punishment of LWOP is constitutionally infirm unless, in addition to a finding that the killing was intentional, it is determined that the murder was willful, deliberate and premeditated, and (2) Penal Code section 190.2, subdivision (a)(17) may properly be given a construction which necessarily incorporates the requirement that the murder be willful, deliberate and premeditated.
Turning first to appellant's latter argument, we begin with an examination of the applicable statutory provisions. Penal Code section 190.2, subdivision (a)(17), adopted pursuant to the Briggs Initiative Measure approved November 7, 1978, provides that the penalty for the defendant convicted of murder in the first degree shall be death or LWOP in any case where the "murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:
"(i) Robbery in violation of Section 211.
"(ii) Kidnapping in violation of Sections 207 and 209.
"(iii) Rape in violation of Section 261.
"(iv) Sodomy in violation of Section 286.
"(v) The performance of a lewd or lascivious act upon the person of a child under the age of 14 in violation of Section 288.
"(vi) Oral copulation in violation of Section 288a.
"(vii) Burglary in the first or second degree in violation of Section 460.
"(viii) Arson in violation of Section 447.
"(ix) Train wrecking in violation of Section 219."
The former version of Penal Code section 190.2 which was repealed by the Briggs Initiative provided, in pertinent part: "The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison for life without possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found,
". . . .
"(c) The defendant was personally present during the commission of the act or acts causing death, and with intent to cause death physically aided or committed such act or acts causing death and any of the following additional circumstances exists:
". . . .
"(3) The murder was willful, deliberate, and premeditated and was committed during the commission or attempted commission of any of the following crimes:
"(i) Robbery in violation of Section 211;
"(ii) Kidnapping in violation of Section 207 or 209. Brief movements of a victim which are merely incidental to the commission of another offense and which do not substantially increase the victim's risk of harm over that necessarily inherent in the other offense do not constitute a violation of Section 209 within the meaning of this paragraph.
"(iii) Rape by force or violence in violation of subdivision (2) of Section 261; or by threat of great and immediate bodily harm in violation of subdivision (3) of Section 261;
"(iv) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288;
"(v) Burglary in violation of subdivision (1) of Section 460 of an inhabited dwelling house with an intent to commit grand or petit larceny or rape."
On its face, the present version of Penal Code section 190.2
|