People v. Koufos CA2/4

INTRODUCTION

Nicholas Raymond Koufos appeals from the trial court’s order denying his petition under Penal Code section 1170.95 (Section 1170.95) to vacate his conviction for first degree murder. We affirmed his conviction in a prior, unpublished opinion. (People v. Koufos (June 1, 2005, No. B174165) [nonpub. opn.] 2005 Cal.App.Unpub. LEXIS 4826.) In his petition, Koufos alleged he had been convicted under the felony murder rule or the natural and probable consequences doctrine, as required to establish eligibility for relief under Section 1170.95. In response, the People submitted the jury instructions given at Koufos’s trial, which omitted any instruction on the felony murder rule or the natural and probable consequences doctrine. The jury was instructed on only one theory of first degree murder, viz., premeditation and deliberation, requiring a finding of express malice. The jury was also instructed on second degree implied-malice murder, which required, inter alia, a finding that Koufos committed an act with “natural consequences” dangerous to human life. The trial court appointed counsel for Koufos, who filed a reply brief acknowledging that the jury was not instructed on…