Baker

Michael Baker, Christopher Paonessa, and Dino Riggio appeal from judgments entered against them following their convictions by jury verdict in the murder of Jason Shaw and the attempted murder of Danny Parkison. Baker was convicted of murder (count I), attempted murder (count II), conspiracy to commit assault with a deadly weapon (count V), and residential burglary (count VI). The jury found that the murder and burglary were in the first degree, that the allegations of personal use of a knife (counts I and II) and infliction of great bodily injury (count II) were true, and that the attempted murder was willful, deliberate, and premeditated. Paonessa was found guilty of the same counts. The jury found that the murder and the burglary were in the first degree, that the allegations of personal use of a knife (count II) and infliction of great bodily injury (count II) were true, and that the attempted murder was willful, deliberate, and premeditated. The jury found Riggio guilty of counts I, V, and VI, as well as assault with a deadly weapon (count IV). The jury found the murder to be in the second degree and the burglary in the first degree.

All three appellants raise…

Michael Baker, Christopher Paonessa, and Dino Riggio appeal from judgments entered against them following their convictions by jury verdict in the murder of Jason Shaw and the attempted murder of Danny Parkison. Baker was convicted of murder (count I), attempted murder (count II), conspiracy to commit assault with a deadly weapon (count V), and residential burglary (count VI). The jury found that the murder and burglary were in the first degree, that the allegations of personal use of a knife (counts I and II) and infliction of great bodily injury (count II) were true, and that the attempted murder was willful, deliberate, and premeditated. Paonessa was found guilty of the same counts. The jury found that the murder and the burglary were in the first degree, that the allegations of personal use of a knife (count II) and infliction of great bodily injury (count H) were true, and that the attempted murder was willful, deliberate, and premeditated. The jury found Riggio guilty of counts I, V, and VI, as well as assault with a deadly weapon (count IV). The jury found the murder to be in the second degree and the burglary in the first degree.

All three appellants raise…

I concur.

I write separately to emphasize that the Legislature has the prerogative to categorize the degrees of murder. It has done so in Penal Code section 189. As given, the trial court’s jury instruction (CALJIC No. 8.26) runs afoul of section 189. The People have urged that a “conspiracy murder” theory of liability permits such instruction. The People’s conclusion is baffling.

The prosecuting attorney in discussing this instruction told the trial judge that “the conspiracy murder theory under 8.26 . . . requires a finding of first-degree murder.” The trial court apparently adopted the prosecution’s conclusion. However, it does not correctly state the law of California.

“If two or more persons conspire ... [¶] ... to commit any .... felony” they commit the crime of conspiracy and are “punishable in the same manner and to the same extent as is provided for the punishment of that felony.” (Pen. Code, § 182.) For that reason a person who conspires to commit felonious assault shall be punished to the same extent that person would have been if that person had committed (or aided and abetted) such an assault. It follows that a conspiracy to assault that results in a homicide…