People v. McDermand

1 Citing brief

  1. PEOPLE v. TULLY (RICHARD C.)

    Appellant's Reply Brief

    Filed September 23, 2010

    (See II AOB 658 (citing People v. Cooper (1991) 53 Cal.3d 1158, 1166-1167)); (4) The lying in wait special circumstance under section 190.2(a)(15) is so all-encompassing that it includes nearly every premeditated murder because: (a) this Court has abandoneda strict adherenceto the language of “while” lying in wait; (b) the language ofthe special does not require physical concealment; (c) does not require that the actual period of lying in wait include “watching;” and (d) it does not require that the killing occur simultaneously with the waiting. (See IT AOB 660-64 (citing People v. McDermand (1984) 162 Cal.App.3d 770; and Osterman & Heidenreich, Lying in Wait: A General Circumstance (1996) 30 U.S.F.L. Rev.1249, 1279)); 5) The California statute is unconstitutional because a comparison of special circumstancesfirst degree murders under 190.2 and non-special circumstancefirst-degree murderers under section 189 shows that, at the most, there are seven theoretical categories offirst-degree murderers excluded from death eligibility and there are more special circumstances categories than “excluded” categories. (See IJ AOB 664); and 6) California’s death penalty scheme as a whole does not meet the qualitative narrowing prong of the Furman mandate because death-eligible first-degree murderers are no more blameworthy than the “excluded” categories of first-degree murderers.