24 The greatest difference is between second degree malice-murder and first degree felony-murder. By the express terms of section 187, second - degree malice-murder includes the element of malice (People v. Watson, supra, 30 Cal.3d at p. 295; People v. Dillon, supra, 34 Cal.3d at p. 473 , but malice is not an element of felony murder. (People v. Box, supra, 23 24 Justice Schauer emphasized this fact when, in the course of arguing for affirmance of the death sentence in People v. Henderson (1963) 60 Cal.2d 482, he stated that: "The fallacy inherent in the majority's attempted analogy is simple.

In all other respects, the judgment should be affirmed. The court found appellant guilty beyond a reasonable doubt of count XXI, the LaTanya McCoy murder(§ 187, subd. (a)). (2RTS 311-312.) ~ The court fixed the degree of murder at second degree, and foundtrue the special circumstanceallegation that appellant committed multiple murders (§ 190.2, subd. (a)(3)). (2RTS 312-313.)

Murderis the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) This Court has defined “deliberate” as “formed or arrived at or determined uponasa result of careful thought and weighing of considerations for and against the proposed course of action.

(5 CT 1196). - ae In People v. Witt, 170 Cal. 104, 107-08 (1915), this Court declared that, “it is sufficient to charge the offense of murder in the language of the statute defining it, whatever the circumstances of the particular case.” In People v. Dillon, 34 Cal. 3d 441 (1983), this Court held that Penal Code section 187 was not“the statute defining”first-degree felony murder. After an exhaustive review of statutory history and legislative intent, the Dillon court concluded that “[w]e are therefore required to construe [Penal Code] section 189 as a statutory enactmentof the first degree felony-murder rule in California.”

(U.S. Const., 5th, 6th, 8th & 254 14th Amends.; Cal. Const., art. I, §§ 7, 15 & 16; People v. Kobrin (1995) 11 Cal.4th 416,423.) Nevertheless, this Court has held that "[f]elony murder and premeditated murder are not distinct crimes" (People v. Nakahara (2003) 30 Cal.4th 705, 712), and that a defendant may be convicted of fIrst- degree murder even though the Indictment or Information charged-only malice-murder in violation of section 187. (See, e.g., People v. Hughes, supra, 27 Cal.4th at pp. 368-370; Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1034.) Mr. Rountree asks this Court to reconsider those decisions.

There was a stipulation that the officer interviewed Nathan Bunting on March 26, 1998, and he drew a picture of a suspect with a tattoo on the right rear side of the subject’s neck. (14 RT 3401.) On October 16, 2001, the jury found appellant guilty on all counts: Count 1, murder, in violation ofPenal Code Section 187; Count2, the murder was committed while engaged in a robbery, a violation ofPenal Code Section -33- 211; Count3, first degree burglary, a violation ofPenal Code Section 459 and 460; and Count4, taking of a vehicle in violation of Vehicle Code Section 10851. (15 RT 3688-3689.)

ine any of the vague and overbroad language; the trial court did not convey that the central determination is whether the death penalty is appropriate, not merely authorized under the law; the trial court did not provide the jury with all the options afforded them; the penalty instructions favored and weighted aggravating evidence, and disfavored and minimized mitigating evidence; certain definitions in the penalty instructions were inaccurate, misleading or unconstitutional; and the weighing process upon which the jury was instructed was confusing and incorrect. The result of these violations was the imposition of a freakish, wanton, arbitrary and capricious judgment of death. A. California's Death Penalty Statute Fails to Narrow the Class of Death-Eligible Defendants as Required by the Eighth and Fourteenth Amendments. 718. Petitioner was convicted, in a single trial, of four geographically, temporally and factually distinct counts of first degree murder and sentenced to death under California Penal Code sections 187(a) and 190.2(a)(3). The special circumstance rendering Petitioner eligible for imposition of a sentence of death was a finding of multiple murder, alleged and found true under Penal Code section 190.2(a)(3).

Appellant was also charged with commercial burglary at Comp USA,as well as second degree robbery ofPeter Lee, William Doehr and Arlen Nydam. Appellant was also charged with the murder ofArdell Williams on March 13, 1994. (California Penal Code § 187(a)). Appellant was charged with entering into a conspiracy to commit the murder ofArdell Williams.

In CountIV, the sameacts that gave rise to CountIT were used to charge appellant with the murder of James Mahoney. (§ 187, subd. (a).) Special circumstance allegations of lying in wait, (§ 190.2, subd. (a)(15)), and multiple murder were charged in connection with Count IV.

Under California law as it now stands, this makes no difference. The jury was instructed on the usual elements offirst degree murder: CALJIC 81.10 (Murder—Defined (Pen. Code, § 187); CALJIC 8.11 (“Malice Aforethought”—Defined); and CALJIC 8.20 (Deliberate and Premeditated Murder). (15 CT 4122-4124.) They were also instructed on second degree murder.