Fitzpatrick

A jury convicted defendant Duane Keith Fitzpatrick of first degree murder (Pen. Code, § 187) and found that he was armed with and personally used a firearm (§§ 12022, subd. (a), 12022.5). On appeal (People v. Fitzpatrick (Mar. 13, 1989) E004739, [nonpub. opn.]), this court reversed the judgment on the ground that erroneous jury instructions on implied malice had been given. The matter was remanded for retrial.

On retrial, a jury again convicted Fitzpatrick of first degree murder and found the armed and use allegations to be true. The court sentenced him to a two-year determinate term for the use of a firearm, a consecutive indeterminate term of twenty-five years to life for the murder, and stayed a one-year term for the armed allegation.

On appeal, Fitzpatrick contends the trial court erred in: (1) instructing the jury on the theory of murder by lying in wait; (2) instructing the jury with CALJIC No. 8.73 instead of Fitzpatrick’s requested modified instruction; (3) improperly instructing the jury on the order in which it should consider charges during deliberations; (4) giving an improper pinpoint instruction; and (5) refusing to allow Fitzpatrick to raise issues in…