Morse

*631 Opinion

A jury convicted appellant of two counts of first degree murder (Pen. Code, 1 §§ 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…

I concur with the majority that second degree felony murder based on reckless or malicious possession of a destructive device cannot be ratchetted up to first degree murder by application of Penal Code section 189. 1 (Maj. opn., ante, pp. 654-656.) Therefore, if defendant is guilty of murder, he is guilty of second degree murder. However, unlike the majority, I conclude the second degree murder convictions too should be reversed because the jury verdict may be based on what I deem an erroneous application of the felony-murder doctrine. Since the jury was instructed on both ordinary second degree murder and second degree felony murder, it is quite probable one or more jurors—and possibly the entire jury—found defendant guilty of felony murder but not of ordinary murder.

I find this an extraordinarily troubling case. Our research has been unable to uncover a single case anywhere in the country in which possession of a bomb or similar device has been held to justify a felony-murder prosecution. Likewise we have been unable to locate a single case in which a person has been convicted of felony murder because a bomb squad member was killed while attempting to disarm the defendant’s…

WOODS (Fred), J.

A jury convicted appellant of two counts of first degree murder (Pen. Code, [1] §§ 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.

Two Los Angeles police officers were dismantling a bomb in appellant's garage when it exploded and killed them.

The prosecution theory was that…