Warner

Douglas William Warner commenced a romantic relationship with his next-door neighbor while she was engaged in bitter child custody litigation with her husband, who later accused Warner of abusing the couple’s child. His arrest at his apartment in front of his friends infuriated him. The court dismissed the charges against him for lack of evidence, but he felt depressed and distraught at losing his chance to have his day in court. Weeks later, he killed her husband with a shotgun blast to the chest.

After trial by jury, the court imposed an aggregate sentence of 50 years to life (a 25 year-to-life term for first degree murder (Pen. Code, § 187, subd. (a) ) consecutive to a 25 year-to-life term for personal and intentional discharge of a firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)) and imposed and stayed a consecutive four-year (middle) term for personal use of a firearm (§§ 654, 12022.5, subd. (a)). On appeal, Warner argued (1) that CALCRIM No. 226 impermissibly lightened the prosecution’s burden of proof and (2) that the court should have stricken, not imposed and stayed, the lesser firearm use enhancement.

On Warner’s appeal in 2007,…