People v. Fortman CA2/2

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The underlying crime On the last Saturday in January 1966, defendant and Tim Hartman (Hartman) used the $4 they had earned that day soliciting contributions at the Purple Heart Veteran’s Service to buy themselves cigarettes and cheap wine. While drunk, they saw an elderly man on the street and decided to “roll him” (that is, to take what money he had). They viciously attacked him by repeatedly punching and kicking him, and then turned out his pockets and discovered he had no money. The man died from his injuries a few days later. B. Charging, conviction and appeal The People charged defendant and Hartman with (1) murder (§ 187), and (2) attempted second degree robbery (§ 211). The jury was instructed that each defendant could be liable for murder (1) as a person who acted with malice (that is, as the actual killer or a person who, with intent to kill, aided and abetted the actual killer), or (2) on a felony-murder theory (that is, on the theory that they jointly committed the felony of robbery and thus were jointly liable for the murder resulting from that robbery), or (3) on a natural and probable consequences theory (that…