People v. O'Brien CA4/2

I.

INTRODUCTION

Defendant and appellant Michael Patrick O’Brien shot and killed his ex-

girlfriend’s fiancé, Rudy Areyan. A jury convicted defendant of first degree murder 1 (Pen. Code, § 187, subd. (a)) and found true the allegation that he discharged a firearm,

causing great bodily injury or death, in the commission of the crime (§ 12022.53, subd.

(d)). The trial court found that defendant had a prior conviction that qualified as both a

serious prior felony (§ 667, subd. (a)) and a strike prior (§ 667, subds. (b)-(i)). The trial

court sentenced defendant to 75 years to life, consisting of an indeterminate term of 25

years to life for the murder, doubled for defendant’s prior strike conviction, plus 25 years

for the firearm enhancement.

On appeal, defendant argues: (1) substantial evidence does not support the jury’s

verdict; (2) the trial court erroneously instructed the jury with a flight instruction; (3) the

trial court erroneously instructed the jury that it was not required to unanimously find

defendant guilty under one of the prosecution’s two theories of first degree murder; and

(4) remand is necessary to allow the trial court to reduce or modify the…