McKissick

Statement of the Case

In 1980, an information was filed in the Superior Court of Kern County accusing defendant of a violation of Penal Code section 187 (murder) and a violation of section 12022.5 (use of firearm in commission of a felony). Defendant was arraigned, pled not guilty, and denied use of a firearm. After a trial by jury, defendant was found guilty of second degree murder and use of a firearm during the commission of the felony. He was sentenced to state prison for an aggregate term of 17 years to life (15 years with a 2-year enhancement for use of the firearm). Defendant appeals from this conviction and sentence. The issues on appeal are:

1. Was the evidence sufficient to support defendant’s requested instructions on diminished capacity?

2. Did the trial court err in limiting defendant to 10 peremptory challenges where defendant was charged with murder without special circumstances?

3. Did the trial court incorrectly assume defendant was not eligible for probation because of an alleged defect in the information?

Statement of Facts

Discussion

1. Instructions on Diminished Capacity.

2. 10 Peremptory Challenges.

3. Eligibility for Probation.

Defendant…