The affidavit of the chief counsel for the committee states that on November 14, 1957 “about sixty-five individuals from many parts of the State of New York as well as from points as far distant as Florida, California, Texas, and Cuba met at the home of Joseph Barbara in Apalaehin. Members of the New York State Police, accompanied by certain Federal officials, were noticed observing the Barbara residence. Thereupon the sixty-five individuals, referred to above, promptly attempted to leave the premises in their automobiles. Many attempted to hide in the surrounding woods but were flushed out by members of the New York State Police. The police accosted each group as it was departing and learned the identity of the assembled individuals. An unusual number are known in police circles as leaders of organized rackets including the distribution of narcotics. Many of the sixty-five have records of conflict with the law, including convictions for dealing in narcotics, for extortion, and for bootlegging (during prohibition days) and arrests for almost every serious crime including <mask>. The identity of these individuals, particularly those described as the leaders, and the great distances they had traveled to meet at Apalaehin, obviously not a casual meeting, has caused many law enforcement officials to conclude that this meeting was a * convention ’ of the infamous Mafia, a criminal syndicate operating throughout the United States, Cuba and the world. Among those present were Joseph Profaci of Brooklyn, New York, described in the Third Interim Report of the Special Committee to Investigate Organized Crime in Interstate Commerce (Kefauver Committee) as ‘ one of the top leaders of the Mafia \ Another was Vito Genovese of Highlands, New Jersey, believed by police experts to be another of the top leaders of the Mafia, and was known to have been a close associate of the notorious Albert Anastasia, recently murdered in New York City in ‘ gang-land ’ style. ’ ’


*424There is no doubt defendant caused the victim's death. But his mental state at the relevant time was not clear-cut at all. The jury could easily have inferred that he killed her in the heat of passion, rather than in a calculating way, particularly given his heavy drug usage that week, the evidence he was with her in the van, apparently peaceably for some time, and the lack of an apparent plan-at least a thought out plan-to kill her, among other facts. By so heavily resting the case for murder-and first degree <mask> to boot-on defendant's 1991 actions, the prosecutor greatly increased the likelihood the jury would also improperly rest its determination thereon. (See Hendrix , supra , 214 Cal.App.4th at pp. 249-250, 153 Cal.Rptr.3d 740 [a prosecutor's emphasis or minimization of uncharged act evidence at argument is relevant when considering whether introduction of the evidence was prejudicial].)


After relating the complete story to his mother, which was consistent with the tape-recorded version of the juvenile’s confession, and after attempting to persuade his *393brother Michael to confess to his involvement in the <mask> — which he never did, although Michael admitted being implicated in the theft of the minibike — Paul Quartararo then recanted his statements. He subsequently denied being involved in the murder, and said that he had “made up the story because he thought you guys would let me go [sic]!”


Third, to the extent defendant contends there is no rational basis for treating joyriding convictions more harshly than automobile theft convictions, this contention is not persuasive. There are sound reasons to treat the temporary deprivation of a vehicle differently than the theft of that same vehicle. (People v. Johnson, supra, 28 Cal.4th 240, 121 Cal.Rptr.2d 197, 47 P.3d 1064 [exclusion significant to show the voters' intent].) In general, the Vehicle Code is concerned with assuring public safety on California thoroughfares, whereas the Penal Code is concerned with wrongs to individual people. For example, *474Vehicle Code section 10850 provides that the provisions of chapter 4, which includes Section 10851, "apply to vehicles upon the highways and elsewhere throughout the State." In turn, Vehicle Code section 360 defines a highway as a "way or place of whatever nature, publicly maintained and open to the use of the *1114public for purposes of vehicular travel." By punishing taking or driving a vehicle without the intent to deprive the owner of permanent title or possession, Section 10851 addresses dangers to the public. Such dangers are not encompassed by standard theft statutes, which focus on particular victims-the owners of stolen personal property. Undoubtedly, the unexpected loss of a vehicle directly affects the safety and welfare of individual vehicle operators and owners, but it also places the public at risk if, for example, the car is driven recklessly or used to commit another crime. Just as a vehicle can be a dangerous weapon, joyriding can jeopardize public safety. (See People v. Linares (2003) 105 Cal.App.4th 1196, 129 Cal.Rptr.2d 882 [attempted <mask> by auto]; Veh.Code, § 13351.5 [requiring lifetime revocation of driver's license upon conviction of assault with a deadly weapon by means of a vehicle].)


Two felonies arose out of the prisoner’s acts • — • neither being dependent on or an ingredient of the other ; and for either or both he might have been indicted. But an indictment embracing both felonies would have been bad. If a person unintentionally kills another, while committing a minor felony which is not an ingredient of the killing, the tivo felonies being so distinct that they cannot be included in the same indictment, they are not merged, *494and the accused may be convicted of <mask> under the third subdivision of section five.


The defense, at trial, focused on Appellant's mental capacity. She argued she could not form the intent required to be found guilty of first-degree <mask>. The defense called two psychiatrists and Victim's Wife. Victim's Wife testified Appellant had a good friendship with Victim, but this changed because Appellant believed Victim was treating her poorly. Victim's Wife explained this belief continued even though she told Appellant she was not being abused. Victim's Wife testified that she, Appellant, and Victim attended counseling sessions to help Appellant overcome these issues.


Rob Bonta, Attorney General and Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent. ______________________________ Pursuant to order by the California Supreme Court, we vacate our original opinion and issue this opinion instead. In 2003, defendant and appellant Carlos M. Amador pleaded guilty to four counts of second degree <mask> (Pen. Code, § 187)1 and was sentenced to four concurrent terms of 15 years to life in state prison. On April 22, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. Following a hearing, the trial court denied the petition, finding that defendant had not stated a prima facie case for relief. Defendant timely filed a notice of appeal. He argued that because he established a prima facie case that he is potentially eligible for resentencing relief, the trial court should have issued an order to show cause and held an evidentiary hearing. On January 29, 2021, we affirmed the trial court’s order, finding that defendant was a major participant in the crimes and acted with reckless indifference to human life. (People v. Amador (Jan. 29, 2021, B305288) [nonpub. opn.].) Defendant filed a petition for review with the California Supreme Court, and on November 17, 2021, the Supreme Court granted his petition, and “transferred [the case back] to the Court of Appeal, Second Appellate District, Division Two, with directions to vacate its decision and to reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th 952, 971–972.” On December 1, 2021, the People filed a supplemental letter brief, conceding that “[a]lthough the evidence does not appear to support [defendant’s contention] that he could not be


Furthermore, although there is no dispute that the evidence was sufficient to support the <mask> conviction, it was not "overwhelming," as the People would have it. A finding of implied malice "depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (People v. Watson (1981) 30 Cal.3d 290, 296-297, 300-301, 179 Cal.Rptr. 43, 637 P.2d 279.) In this case, although the evidence that defendant actually appreciated the risk involved was substantial, it was also largely circumstantial and in significant part rested on inference of defendant's pre-collision state of mind from post-collision behavior. The jury reasonably could have found defendant did not act with implied malice, even if he appreciated the gravity of his actions immediately after the collision, and even though he should have known better from his past experience.


Mobile telephone records showed that Aleman's device was activated near Placita Olivera at 12:24 a.m. on December 12, 2008, around the same time as Cabral's device. The two communicated numerous times between 3:18 and 3:45 a.m., using cell phone towers near the Bentley crash site. Cabral cooperated with police because he wanted to avoid being charged with Macias's <mask> or spend the rest of his life in prison.


As we noted, with respect to Arredondo, the jury found true alleged firearm enhancements under section 12202.53, subdivisions (d) and (e). In addition to sentencing Arredondo to life without possibility of parole on his <mask> with special circumstances conviction, the trial court imposed an additional sentence of 25 years to life under section 12202.53, subdivision (d) and stayed imposition of the section 12202.53, subdivision (e) enhancement. At the time of sentencing, the trial court had no power to strike either firearm enhancement under section 1385. (See former § 12022.53, subd. (h).) However, in 2017, while Arredondo's appeal has been pending, the Legislature approved and the governor signed SB 620, which, as of January 1, 2018, gave trial courts the discretion to strike section 12022.53 firearm enhancements. (§ 12022.53, subd. (h).)


On remand in Jackson v. Norris ,5 we rejected the State's argument that the Eighth Amendment violation could be cured by severing the capital-<mask> statute, Arkansas Code Annotated section 5-10-101(c) (Repl. 1997), to provide for a sentence of life with parole. 2013 Ark. 175, 426 S.W.3d 906. We explained that the imposition of that sentence would not allow for consideration of Miller evidence. Id. , 426 S.W.3d 906. Instead, we severed language from the statute "so that, for juveniles convicted of capital murder, all that remain[ed] [was] that capital murder is a Class Y felony." Id. , at 7-8, 426 S.W.3d at 910. We remanded the case for a sentencing hearing at which Jackson could present Miller evidence for consideration and instructed that Jackson's sentence must fall within the discretionary sentencing range for a Class Y felony, which is ten to forty years or life. Id. at 9, 426 S.W.3d at 911 (citing Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997) ); see also Whiteside v. State , 2013 Ark. 176, 426 S.W.3d 917 (reversing juvenile offender's capital-murder sentence and remanding to the circuit court for resentencing within the discretionary statutory-sentencing range for a Class Y felony and directing that a sentencing hearing be held for presentation and consideration of Miller evidence).


three counts of <mask> (Pen. Code,1 § 187, subd. (a)) and multiple other felonies. Hall entered into a plea agreement in which he pleaded guilty to one count of voluntary manslaughter (§ 192, subd. (a)) as a lesser offense of murder and one count of robbery (§ 211). Hall also admitted the crimes were committed for the benefit of a criminal street gang. The court sentenced Hall to a determinate term of 12 years in prison. In 2019, Hall filed a petition for resentencing under section 1170.95. The trial court denied the petition on the grounds section 1170.95 did not apply to persons who pleaded guilty to manslaughter as lesser offenses of murder. Hall appealed, and this court affirmed the denial of Hall’s resentencing petition in an unpublished opinion. (People v. Hall, D078174 (Aug. 18, 2021).) Hall petitioned for review. The Supreme Court granted review and remanded the case to this court to reconsider our opinion in light of newly enacted Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775), which became effective January 1, 2022. We requested and received supplemental briefing from the parties on the impact of Senate Bill 775 on this appeal. Both Hall and the Attorney General contend the order must be reversed and the case remanded to the trial court with directions to issue an order to show cause and to conduct an evidentiary hearing as required by section 1170.95. We agree. The statutory changes that occurred while this case was pending require reversal. As such, we will reverse the order and remand the matter back to the superior court with directions.


As explained below, defendant's contention that his confession followed an invocation of his Miranda right to remain silent is forfeited due to the absence of a timely and specific objection, as well as defense counsel's subsequent withdrawal of all objections to the prosecution evidence. Defendant's secondary position-that trial counsel was ineffective in failing to make an objection to preserve the Miranda invocation issue for appeal-is meritorious. Defendant has established prejudice and reversal is required of the conviction for first degree <mask>. Defendant has not, however, established prejudice as to his *909conviction of kidnapping in count 3, which we affirm.


Penal Code section 32 provides in full as follows: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony." The elements of the offense therefore required proof that defendant both "harbored, concealed, or aided" the accused <mask> defendants and did so with the intent they avoid trial, conviction, or punishment. ( People v. Tran (2013) 215 Cal.App.4th 1207, 1219, fn. 7, 155 Cal.Rptr.3d 803 [listing all elements of a Penal Code section 32 violation].) The majority's extended discussion of defendant's intent correctly concludes that element was satisfied. But intent is not the critical issue in this case. What was lacking is proof that defendant's silence amounted to harboring, concealing, or aiding her brother and his confederates.


Petitioner, who is imprisoned on a conviction of <mask> in the second degree, applied to participate in the temporary work release program in November 1993. The temporary release committee denied petitioner’s application in a decision that was affirmed upon petitioner’s administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge the determination, claiming that made*914quate consideration was given to certain factors which were required to be considered pursuant to Correction Law § 855. We agree with Supreme Court that the petition fails to state a cause of action.


In September 1996, Star-Telegram delivered the 16 pictures of the murdered coed, Adrienne Jones (AJ photos), to Sipa. From that time through April 1998, Sipa duly syndicated the photos, selling to virtually all of the major print and television media, including defendant St. Martin’s Press, Incorporated (St. Martin’s), which published a book about the <mask> and trial of the cadets. .


In his defense, however, appellant testified that he did not shoot James Murray and that he did not go to his house on the day of the shooting. Considering his own testimony, the evidence clearly showed that appellant was either guilty of the offense charged or innocent. When a defendant makes a claim of innocence, no rational basis exists to instruct the jury on a lesser-included offense because the jury needs to determine only whether the defendant is guilty of the crime charged. Atkinson v. State , 347 Ark. 336, 349, 64 S.W.3d 259, 268 (2002). Based on his claim of innocence, there was no rational basis to instruct the jury on manslaughter as a lesser-included offense of capital <mask> or first-degree murder. Therefore, we cannot say that the circuit court erred in declining to instruct the jury on manslaughter.


A close reading of Johnson illuminates the critical difference between how a court assesses crimes under the residual clause and the second degree felony-<mask> rule. As discussed above, Johnson held the core infirmity with the ACCA residual clause is that it anchors risk to hypothetical facts. That is, the residual clause impermissibly "ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements ." ( Johnson, supra, 135 S.Ct. at p. 2557, italics added.) Implicit in this holding is that a crime is not unconstitutionally vague if a court assesses risk by one of two alternative methods: consideration of the real-world facts underlying the conviction or consideration of the statutory elements of the crime.


Two recent Court of Appeal decisions have held that defendants cannot seek relief under Senate Bill No. 1437 in direct appeals but instead must file petitions under section 1170.95. ( People v. Martinez (2019) 31 Cal.App.5th 719, 727-729, 242 Cal.Rptr.3d 860 ; accord People v. Anthony (2019) 32 Cal.App.5th 1102, 1148, 1153, 244 Cal.Rptr.3d 499.) We need not decide whether the same reasoning applies to preclude the seeking of such relief in a habeas petition. (See § 1170.95, subd. (f) ["This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner"].) Here, Taylor mentioned Senate Bill No. 1437 in passing in his habeas petition, which was filed in the Supreme Court before the new legislation took effect. But he did not brief the issue of his entitlement to have the <mask> conviction itself vacated until he filed his traverse, and the Attorney General did not address the issue. Indeed, the Court issued an order to show cause "why petitioner is not entitled [to] relief under [ Banks ]," a decision that does not directly implicate Senate Bill No. 1437. Under these circumstances, we conclude that the more efficient course is for Taylor to seek to overturn his murder conviction by filing a section 1170.95 petition in the superior court. Once any such petition is filed, the parties will have the opportunity to address the effect of our holding on Taylor's *358entitlement to relief under Senate Bill No. 1437, an issue on which we express no opinion. *563III.


Review of New York cases regarding disclosure of other types of confidential and privileged information, while not exactly on point, have been instructive to the court. One such case is People v Reidout (140 Misc 2d 632 [Sup Ct 1988]). In that case, the defendant was charged in the <mask> of his wife and 13-year-old stepdaughter and the attempted murder of his seven-year-old son and nine-year-old stepson. The two boys were to be called as witnesses for the People, and the defendant subpoenaed their psychiatric treatment records to be used for purposes of attacking their credibility during cross-examination. The treating hospital moved to quash the subpoena on the ground that the records were protected under the physician-patient privilege, and their disclosure would have a chilling effect on the boys’ ability to confide in and trust their therapist, thus hindering their recovery.


On October 31, 2011, the investigators referred the whole case to the Fort Bend County District Attorney's Office and filed an offense report recommending that A.M., Patterson, and Edwards be arrested and charged with <mask>. However, the record reflects that the lead investigator did not sign a probable cause affidavit or obtain a directive to apprehend A.M. at that time. Rather, he testified that, although his October 2011 report requested A.M.'s arrest, he did not intend to arrest A.M. at that time because he needed "some physical evidence to help corroborate" the testimony against him.


8. which Cooper was taken. The court also cited Evidence Code section 352. Cooper argues the evidence is relevant to show that GSR can be transferred between surfaces. Thus, the particle of GSR found on Cooper’s hand may have come from a source other than shooting a gun. But Cooper’s counsel made that point with other questions. He elicited from Cavaleri that GSR can be transferred from other surfaces; that sometimes police cars have GSR in them; that the best place to perform a GSR test is at the crime scene, not later at the police station; and that the presence of GSR does not necessarily prove that the person fired a firearm. Any reasonable juror would have seen the point Cooper was trying to make: that he could have picked up a particle of GSR from any number of sources. If the trial court erred, it was harmless by any standard. Moreover, the prosecution was not required to prove that Cooper personally discharged a firearm. The prosecution only had to prove that Cooper was an accomplice in a <mask> for the benefit of a criminal street gang in which its principal personally and intentionally discharged a firearm causing death. (§ 12022.53, subds. (d) & (e); People v. Hernandez (2005) 134 Cal.App.4th 474, 480.) That is what the jury found. The jury was not required to find that Cooper was the actual shooter. Here the evidence showed that Cooper acted with members of his gang to avenge disrespect shown to them by a rival gang member. If Cooper was not the actual shooter, he was at least an accomplice. It was unfortunately a typical murder carried out for the benefit of a criminal street gang.


The court’s research reveals no New York case law involving a motion for discovery of a private residence which is also *952a crime scene. However, New York has an analogous body of decisional law applying the principle that the discovery rights of a defendant must be balanced against the rights of third parties. In People v Chambers (134 Misc 2d 688 [Sup Ct, NY County 1987]), the trial court inspected the <mask> victim’s diary in camera, after obtaining it from the victim’s father’s attorney. At one point, the diary had been in possession of the District Attorney but had been returned by the time defense counsel sought access. The court found that the defense had made no showing that it was reasonably likely that the diary contained evidence or potential evidence. The court examined the diary and found no relevant, admissible evidence, and nothing required to be disclosed under any constitutional or statutory provision. And, in People v Nelson (151 Misc 2d 951 [Sup Ct, Kings County 1991]), the court refused to order the taking of blood and saliva from the victim in a case where the rape defendant was arrested sleeping in the complainant’s bed and made admissions. The court found that since the People did not intend to present any scientific evidence at trial, defendant’s proposed discovery was neither relevant nor material.2 The court noted that the defense would of course be available to cross-examine the People’s witnesses concerning the lack of scientific testing.


On January 17, 1956 the County Judge before whom the <mask> case was tried, made and entered an order, on the basis of a stipulation signed by the parties to the appeal, which order directed the printing of the objectionable matter. Thus, the matter excluded from evidence was, by said order, made part of such record on appeal. Despite entry of this order, respondents still refuse to print the newspaper and magazine articles already referred to, and it is because of such continued refusal that the present application is now before this court.


As a factual issue, the stabber could be properly indicted for the criminal possession of a weapon in the fourth degree count of the indictment as it appears that he possessed the screwdriver with the intent to commit a crime (i.e., strike Corey Lawson with it). However, there was no testimony that showed that the stabber’s intent was to cause death or serious physical injury to Junius Crawford (as opposed to Corey Lawson), the victim in this case, which are the theories underlying the attempted <mask> in the second degree and assault in the first degree counts.


The language of the constitutional provision prohibiting jury waiver where "the crime charged may be punishable by death” (NY Const, art I, § 2) and the statutory provision allowing *797waiver "[ejxcept where the indictment charges the crime of <mask> in the first degree” (CPL 320.10 [1]) cannot be reconciled when viewed in the context of the recently enacted Capital Offenders Law. The court must therefore look to the legislative intent to resolve this conflict and "ascertain and give effect to the intention of the Legislature.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 92.) "As a general rule, the legislative intent with which statutes are enacted is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and from the objective and remedy in view.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 95, at 196.) The court must not "merely read the bare end product of the legislative labors, but rather * * * read the statute in light of the state of facts which were found by the Legislature and which prompted the enactment.” (Id., at 197.)


In 1996, following a 14-week jury trial, Defendant-Appellant Leo Contrera was sentenced principally to concurrent terms of life imprisonment for a narcotics conspiracy offense (Count 47) and <mask> in aid of racketeering (Count 8), a concurrent term of 20 years’ incarceration for arson (Count 7), and a consecutive term of five years’ incarceration for a firearms offense (Count 10). On September 21, 2020, Contrera — represented by appointed counsel — moved the District Court for a sentence reduction pursuant to the First Step Act of 2018, Pub. L. No. 115-391 § 404, 132 Stat. 5194, 5222. On November 30, 2020, the District Court granted Contrera relief under the First Step Act by reducing his conviction for Count 47 to time served, but denied his request for relief as to Count 8. Then, on January 14, 2021, Contrera — proceeding without counsel — moved the District Court pursuant to Rule 36 of the Federal Rules of Criminal Procedure to correct alleged errors in his Presentence Report (“PSR”). By order dated February 5, 2021, the District Court


The fact that death did not follow immediately upon the attack is of no significance. In People v Brengard (265 NY 100), a <mask> conviction was affirmed even though death came four years after the inflicting of a bullet wound. It is the causal connection that controls, said the court. "The proximate relationship” they said, "must, of course, be clearly proved beyond a reasonable doubt” (p 108).


In addition to evidence of the three-hour time gap, there was substantial evidence regarding the complicated relationship between defendant and Kerr from which a reasonable jury could infer that defendant was conflicted regarding what to do with Kerr after he had strangled her. By all accounts, their year-long affair was tumultuous and consuming. Defendant conveyed to others that he was in love with Kerr and wanted to marry her, and described their relationship as "perfect." The evidence showed that defendant was upset and frustrated by Kerr's decision to try to reconcile with her husband. But even shortly before the <mask>, defendant continued to profess his love for Kerr and his desire for her to leave her husband and start a family with him. Moreover, although he suspected that Kerr was "screwing him around," defendant nonetheless rented an apartment for her after she left her husband, signing the rental agreement as "Donald Brooks and Lisa Brooks."


Burton B. Roberts, J. The defendant was convicted after a jury trial of 87 counts of depraved indifference <mask>, 87 counts of felony murder, one count of arson in the first degree and one count of assault in the first degree. On September 19, 1991, the defendant was sentenced to concurrent terms of 25 years to life on each of the 174 counts of murder, and concurrent terms of 25 years to life for the arson conviction and 5 to 15 years for the assault conviction. These convictions all resulted from the fire at the Happy Land Social Club on March 25, 1990.


During the questioning, Dilland and Crabtree repeatedly challenged I.F.'s account of the morning of the <mask>, stating, "we have a lot of evidence pointing to another story." Although Dilland and Crabtree were polite and friendly, their questions manifested a belief that I.F. was culpable and they had the evidence to prove it. ( Aguilera, supra, 51 Cal.App.4th at p. 1162, 59 Cal.Rptr.2d 587.)


The trial court concluded: “Based on all of the facts and circumstances presented at the trial and during the hearing it is evident [defendant] is not eligible for relief under section 1170.95, as a review of the evidence indicates he could still be found guilty of <mask> under a theory of liability that remains valid and upon which the jury was instructed.” The court concluded that, under the holding of either line of cases that have since been depublished, discussed ante, “the conclusion is the same.” IV The Standard Of Review Employed By The Trial Court Defendant asserts “the trial court applied the wrong standard or failed to meaningfully employ any standard at all.” Defendant emphasizes the court did not identify the standard of review it was employing, instead it merely stated its conclusion would be the same under either standard. Additionally, while stating defendant could still be found guilty of murder under a valid theory, the court did not identify that theory and it did not expressly make any finding beyond a reasonable doubt. Defendant also asserts the court improperly shifted the burden of proof. Upon reviewing the hearing and the trial court’s order, we cannot say with any assurance what standard of review the court applied or whether it found the evidence established, beyond a reasonable doubt, defendant would be guilty of murder under amended sections 188 or 189 and was thus ineligible for resentencing. The trial court did not state the standard of review it was applying. Although the court recited what the evidence “demonstrated,” “showed,” and “established,” it never set forth its standard of review. The court did not once articulate the beyond-a-reasonable-doubt standard of review, whether in the context of the prosecution’s burden of proof or its standard of review in considering the evidence as independent fact finder. The court’s conclusion was that “a review of the evidence indicates [defendant] could still be found guilty of murder under a theory of liability that remains valid and upon which the jury was instructed.” (Italics added.) This evokes the substantial evidence standard of review


Natalie Antonetti was assaulted in her Austin apartment in the early morning hours of Sunday, October 13, 1985. There was no sign of forced entry, and nothing was stolen. Antonetti was not sexually assaulted and had no defensive wounds. The blunt force trauma to her head, which the medical examiner found consistent with having been attacked with a club or small bat, caused skull fractures, brain contusions, and a coma from which Antonetti never recovered. Antonetti died after the withdrawal of life support. The crime remained unsolved after the death of Austin Police Department Sergeant Edward Balagia, a homicide detective who served as lead investigator and conducted most of the interviews and evidence collection. The unsolved "cold case" was reopened in 2007 after a call to a homicide tip line from Rebecca Davis, the wife of appellant Dennis Davis. Rebecca told police that in 1991 after a few drinks, Davis cried and said he had "sinned against God and man," which she suspected was a reference to the unsolved <mask> of Davis's former girlfriend, Antonetti. Davis was charged with Antonetti's murder. Davis's wife Rebecca recanted her story and argued unsuccessfully that Davis's statement to her was shielded by marital privilege. At trial, there was no physical or forensic proof connecting Davis to the crime; rather, his prosecution hinged on circumstantial evidence and testimony from witnesses, many of whom had not been contacted during the investigation back in the 1980s. The circumstantial evidence about Davis included Davis's relationship and last interaction with Antonetti, his arrival at the scene after the assault, his statements after the assault, his alibi, his ownership of a car similar to one seen in the parking lot of the apartments on the morning of the assault, and other acts of aggression in the years since Antonetti's assault. The jury also considered certain statements and a 911 call from Donn Chelli, Antonetti's neighbor at the time of the assault. Davis v. State , 413 S.W.3d 816, 820 (Tex. App.-Austin 2013, pet. ref'd). The jury convicted Davis in 2011 for Antonetti's *695murder, and the court sentenced him to thirty-six years' imprisonment. Id. at 819. The jury was not presented with evidence of a potential third-party perpetrator, including evidence of Antonetti's neighbor's identification of a different man from a photographic lineup as the person that he had seen holding a club or small bat while looking into the neighbor's apartment on the morning of Antonetti's assault. See id. at 827. This Court determined that Davis received ineffective assistance of counsel, reversed his conviction, and remanded this cause for a new trial. Id. at 838. The Texas Court of Criminal Appeals refused the State's petition for discretionary review. See In re Davis , No. PD-1520-13, 2014 Tex. Crim. App. LEXIS 183, at *1 (Tex. Crim. App. Feb. 5, 2014). This Court issued our mandate in Davis's appeal on March 6, 2014.


IV Retroactive Application of Senate Bill 567 and Assembly Bill 124 In addition to an indeterminate term of 40 years to life for the <mask> and firearm enhancement, defendant was sentenced to a consecutive determinate sentence of three years for possession of a firearm by a convicted felon, the upper term for that crime. The upper term was selected “because the crime involved great violence, great bodily harm and the threat of great bodily harm.” At the time of defendant’s sentencing, section 1170, subdivision (b) provided the trial court with discretion to choose between the lower, middle, or upper term, after considering the record in the case, the probation report, other reports, statements in aggravation or mitigation, and any other evidence introduced at the sentencing hearing, based on which term, “in the court’s discretion, best serves the interests of justice.” (Former § 1170, subd. (b).) This changed, however, on January 1, 2022, when Senate Bill 567 and Assembly Bill 124 went into effect. (Stats. 2021, ch. 731, § 1.3 [Senate Bill 567]; Stats. 2021, ch. 695, § 5 [Assembly Bill 124].) Senate Bill 567 “amends section 1170 and 1170.1 to establish a sentencing procedure consistent with the decisions of the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham), when a trial court seeks to impose the upper term of custody.” (Couzens, Selected Changes to California Sentencing Laws Effective 2022 (Barrister Press 2021) p. 6.) Section 1170, subdivision (b) now provides in relevant part: “(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). [¶] (2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by


Russell P. Buscaglia, J. The defendant, on June 10, 2010, was charged by this indictment with <mask> in the second degree (Penal Law § 125.25). A jury trial was conducted. On January 19, 2011, the defendant was convicted of the lesser included offense of manslaughter in the first degree (Penal Law § 125.20). On March 1, 2011, the defendant was sentenced to a 25-year determinate sentence and five years’ postrelease supervision. Thereafter, the defendant moved pursuant to Criminal Procedure Law § 440.10 (1) (h) to vacate the conviction.


On July 14, 2001, four-year-old Ojagee Heber died as a result of a single gunshot wound to the head. Ojagee accidentally shot himself with an illegal firearm that his uncle, the defendant Wayne Heber, left underneath the cushion of a chair in the living room of his house. As a result of this incident the defendant is charged with <mask> in the second degree, criminally negligent homicide, reckless endangerment in the second degree, criminal possession of a weapon in the third and fourth degrees, and tampering with physical evidence.


Baumgartner also maintained that the shooting had been accidental, stating: “I am responsible for a ‘Gun mis-fortune’ or ‘Mishap.’ In cocking the firearm, the hammer never locked back, and it fell forward, firing the weapon. I never had any intention of actually firing the weapon recklessly at Mr. Clark. I’m ‘Guilty’ of a <mask>, but not of a 2nd[ ] Degree Murder. I’m telling you this with straight honesty and integrity. Please tell the ‘Clark Family’ that I am very [s]orry for being responsible for the death of their loved one. I am sincerely sorry to them. I do feel ‘Remorse’ for what happened.”


Defendant raises additional alleged errors related to his original trial, including issues of prosecutorial misconduct, improper admission of evidence, ineffective assistance of counsel, and failure of the trial court to instruct the jury on involuntary <mask>. Defendant’s additional arguments are not properly before this Court because they raise challenges to events that occurred at trial before the remand, and thus exceed the scope of the remand order. See Jones, 394 Mich at 435-436. In addition, this Court addressed many of defendant’s challenges in the prior appeal,2 and the law of the case doctrine precludes this Court from revisiting its earlier decision. See Zitka, 335 Mich App at 334.


In addition, this matter shall be set down for a hearing before this court to obtain, pretrial, the testimony of Ronald Baker regarding the death of Carolyn Vargas as well as the underlying facts surrounding all of his prior convictions, including his <mask> conviction in Virginia. Again, while pretrial depositions are not normally available in criminal proceedings, given the conflicting accounts previously given by Mr. Baker under oath, and the egregious conduct of the prosecutor in suppressing this information, it is appropriate under these particular circumstances to ascertain exactly what this witness will testify to at trial.


But they doubtless mean the same thing—an intention to kill; for if they do not, and if, as has been contended, “ premeditated design” means an intention formed some time before the killing, and demanding an interval of time between the formation and execution of the design, then is a large class of homicides untouched and unpunished by our law, namely, those cases where the intention to kill is formed on the instant, and is executed in, and is the cause of, the fatal act. Such cases, under that construction of the law, would not be murder, for want of premeditation to the design, and would not be <mask>, because there is present a design to effect death.


The motion court did not hold the facts averred in Appellant's amended motion were insufficient to constitute a possible voluntary <mask> claim. Rather, the motion court found Appellant's claims were refuted by the record, specifically by the statements he made at his guilty plea. The motion court held (1) Appellant's statements indicating he was satisfied with trial counsel, who had investigated and explained all possible defenses, refuted the claim in his amended motion he was not informed of a voluntary manslaughter defense; and (2) Appellant's admission to each element of second-degree murder, and his omission of any mention of Victim being the initial aggressor, refuted the factual basis of his voluntary manslaughter claim.


It is of no significance that the appellate courts did not explicitly dismiss the indictment in conjunction with the order of a new trial, or did not explicitly authorize a resubmission to the Grand Jury of the surviving charge. (Cf. CPL 210.20, subd 4, par [b].) In light of Mayo (supra) *980and Beslanovics (supra), the appellate order of a new trial upon the surviving charge of <mask> implicitly required dismissal of the original murder indictment and resubmission of the manslaughter charge to a new Grand Jury. (Cf. People v Gonzales, 96 AD2d 847, supra.)


In other words, there is (and must be) a lot of room between a trial judge's determination that there is "any rational basis" for giving a particular instruction in a particular case, and the jury's determination that the legal proposition set forth in that instruction was actually established at trial. A jury is free to reject the legal propositions contained in a thousand different jury instructions if it finds that the applicable burdens of proof for those legal propositions are not satisfied by the evidence presented at the trial, but a jury cannot agree with a legal proposition if that legal proposition is never set forth in an instruction for the jury's consideration. This is why we require a jury instruction where there is "any rational basis" for giving it. One can speculate about what impact the withholding of the <mask> instruction had in the case presently before us, but surely this practice of superseding the jury's role as fact-finder must be discouraged. Accordingly,


Accordingly, defendant’s motion to dismiss the count charging him with depraved indifference murder is granted. Defendant’s motion to dismiss the remaining count in the indictment is denied. Upon review of the Grand Jury minutes for this presentation, I find that the evidence adduced before the Grand Jury was legally sufficient to support the remaining charge of <mask> in the second degree. The defendant’s argument that retrial of this count is prohibited by CPL 310.70 is unpersuasive. A reading of this section and of the cases decided thereunder compels the conclusion that it prohibits retrial only of indicted counts which were not submitted to the jury in the previous trial.


probable consequences doctrine, or <mask> may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts . . . .” (Italics added.)2 In her reply brief Duarte argues, with the passage of Senate Bill 775, the order summarily denying her petition for resentencing should be reversed and the cause remanded with directions to the superior court to appoint counsel and to thereafter reconsider her petition consistent with the provisions of section 1170.95 as newly amended.3 In a supplemental letter


For the reasons that follow, we decline to dismiss the indictment pursuant to CPL 470.20 (5) on the ground that the verdict *29is against the weight of the evidence. Instead, we conclude that the conviction should be reduced pursuant to CPL 470.15 (2) (a) to the lesser included offense of <mask> in the first degree (Penal Law § 125.20 [1]), and the matter should be remitted to County Court for sentencing on the lesser included offense pursuant to CPL 470.20 (4).


But, of course, the model code provision goes much further than merely requiring an accomplice to share in behavior. The behavior though negligent, may be perfectly lawful. It requires in addition that the accomplice must share in his principal’s purpose and knowledge. In culpable negligence <mask>, this means that the accomplice like the principal, must have a conscious awareness of the danger involved and must consciously disregard a substantial and unjustifiable risk of death or serious injury to others. (Cf. People v. Eckert, 2 N Y 2d 126.)


The court instructed the jury that it could find the defendant guilty of intentional murder or the lesser included offenses of <mask>, first degree, or manslaughter, second degree, or in the alternative, of depraved indifference murder or the lesser included offense of manslaughter, second degree; this was at the request of the defendant. The jury was further charged that the defendant could be found guilty of only one of those five crimes, or not guilty of all five crimes.


"The defendant is not guilty of murder or <mask> if he was justified in killing someone in self-defense or defense of another. The defendant acted in lawful self-defense or defense of another if: "1. The defendant reasonably believed that he or someone else was in imminent danger of being killed or suffering great bodily injury; "2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; "AND


To be eligible for diversion, a defendant must be charged with class B, C, D or E felony drug offenses under Penal Law article 220 or article 221, or a specified offense under CPL 410.91 (5). The consent of the District Attorney is not required. Defendants are ineligible to participate in the program if, within the preceding 10 years, the defendant had been convicted of: (a) a violent felony offense; (b) a class A felony offense; or (c) any nonmerit time offense (i.e., <mask> in the second degree, vehicular manslaughter in the first and second degrees, criminally negligent homicide, an offense under Penal Law article 130, any offense of incest, and any Penal Law article 263 offense). This 10-year period excludes any time the defendant spent incarcerated. A defendant also will be excluded when he has been previously adjudicated a prior violent felony offender or a persistent violent felony offender or if there are pending violent charges which include one of the disqualifying offenses above. Other factors that the court may consider in determining eligibility are whether the defendant is a threat to public safety or is unable to participate in the program due to other pending charges or violations of probation or parole.


The "note on use" following AMI Crim. 2d 1004-A provides that this instruction is used with AMI Crim. 2d 1004 when the defendant is asserting the defense of extreme emotional disturbance. The note further instructs to use AMI Crim. 2d 301 (Lesser Included Offenses: Introductory Instruction) and AMI Crim. 2d 302 (Lesser Included Offenses: Transitional Instruction) with the bracketed language for extreme emotional disturbance <mask> with the instructions for the murder offense(s) being submitted, then this instruction, followed by AMI Crim. 2d 1004.


(a) When a person believes that the use of physical force is necessary for any purpose justifying that use of physical force under this subchapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state. (b) When a person is justified under this subchapter in using physical force but he or she recklessly or negligently injures or creates a substantial risk of injury to a third party, the *538justification afforded by this subchapter is unavailable in a prosecution for the recklessness or negligence toward the third party. In Harshaw , our supreme court held that it is reversible error to refuse to instruct on the lesser-included offense of <mask> when there is the slightest evidence to support the instruction. Id. ; see Norris v. State , 2010 Ark. 174, 368 S.W.3d 52. It does not hold that a defendant is entitled to a nonmodel jury instruction concerning section 5-2-614. See Harshaw , 344 Ark. 129, 39 S.W.2d 753. Thus, we cannot say that Nelson has established that counsel's failure to request a nonmodel jury instruction was objectively unreasonable. Accordingly, we hold that the circuit court did not err in finding that Nelson's claim had no merit.


Outside the presence of the jury, the trial judge asked if there were objections to the proposed jury charges, which each included (based on the deadly weapon *384plea) an instruction that appellant would not be eligible for parole until his time served equaled one-half of the sentence imposed. Both the State and appellant responded that they had no objections. The jury, having been instructed that appellant was guilty of both charges as alleged in the indictments, sentenced him to twelve years in prison for the offense of intoxication <mask>, and ten years in prison with a recommendation of probation for the offense of intoxication assault.


“This is not [appellant’s] first attempt to extricate himself from the plea bargain by seeking a reduction in his sentence …. Here, [appellant] claims that the Court improperly imposed both the gun and gang enhancements for his conviction for voluntary <mask>. [Appellant] claims that imposition of both enhancements is contrary to … section 1170.1, subdivision (f). [Appellant] further alleges he ‘meets the 10 year requirement stipulated in SB. [sic] 2942 as it relates to the District Attorney.’ [Appellant] offers no analysis on this point. It appears [appellant] is referencing Senate Bill 2942, enacted in 2018, and which amended provision of … section 1170, subdivision (d)(1) to permit the District Attorney to request a recall of a … felony sentence at any time. Contrary to what is apparently [appellant’s] argument, that amendment, which took effect on January 1, 2019, did not confer on any defendant the ability to seek a recall of their sentence beyond the 120[-day] time limit in which the Court may, on its own motion, recall a sentence it has imposed. To the extent [appellant] is relying on … section 1170, subdivision (d)(1) in seeking a ‘modification’ of his sentence, the motion is denied, as this Court has no jurisdiction to recall the sentence. (People v. Loper (2015) 60 Cal.4th 1155, 1165, citing People v. Roe (1983) 148 Cal.App.3d 112, 118.)


The jury found defendant not guilty of second degree murder, but guilty of voluntary <mask> as a lesser included offense. In a subsequent proceeding, defendant admitted the allegation "as alleged" in the information that he suffered a section 245 conviction in August 2005. He also admitted "as alleged" that he suffered a section 12020, subdivision (a)(1) conviction in November 2002. Before taking defendant's admissions, the court explained that defendant was admitting a strike under section 667, subdivisions (b) through (i), which would double his sentence, and that he was admitting a prior prison term under section 667.5, subdivision (b), which would add additional time to his term. Defendant stated that he understood the consequences of admitting the prior convictions as alleged.


Donald J. Mark, J. The defendant was charged with the crime of <mask>, first degree, in violation of Penal Law § 125.20 (2). She allegedly while under the influence of extreme emotional disturbance caused the death of her newborn male infant by asphyxiation by placing two wads of paper in his throat. During the trial of this action two issues surfaced which depended for their resolution upon People v Hayner (300 NY 171). The first was the application of the defendant for a trial order of dismissal, and the second was the instructions to the jury on the definition of live birth.


Where an offence is created by statute, which was not an offence by the common law, it is a general rule that the indictment must charge the offence to have been committed under the circumstances and with the intent mentioned in the statute, which of course contains the only appropriate definition of the crime. State v. Jones, 2 Yerg. Ten. R. 22. State v. O’Bannon, 1 Bayley's Law R. 144. But even in that case it is not necessary to pursue the exact words of the statute creating the offence, provided other words are used in the indictment which are equivalent, or words of more extensive ■ signification, and which necessarily include the words used in *173the statute—as where advisedly is substituted for knowingly, or maliciously for wilfully, and the like. The King v. Fuller, 1 Bos. & Pull. 180. United States v.Bachelder, 2 Gall R. 15. It is otherwise in indictments for common law offences, where the law has adopted certain technical expressions to define the offence, or to indicate the intention with which it was committed ; in which cases the crime must be described, or the intention must be expessed by the technical terms prescribed, and no other. Thus, in an indictment for murder, the terms murder of his malice aforethought are considered absolutely necessary in describing the offence ; and if these words are left out of the indictment, it will be deemed a case of <mask> only. In determining the question whether an indictment should be drawn as at the common law, or should appear to be founded upon a statutory provision which is applicable to the offence, the following" rules are to be observed: If the statute creates an offence, or declares a common lawoffence, when committed under particular circumstances not necessarily included in the original offence, punishable in a different manner from what it would have been without such circumstances ; or where the statute changes the nature of the common law offence to one of a higher degree, as where what was originally a'misdemeanor is made a felony, the indictment should be drawn in reference to the provisions of the statute creating or charging the nature of the offence, and should conclude -against the form of the statute ; but if the statute is only declaratory of what was previously an offence at common law, without adding to, or altering the punishment, as was the statute of 25 Edward 3, declaring what should be considered and adjudged treason, the indictment need not conclude against the form of the statute. 1 Deae. Grim. Law, 661.


In Snow (supra) the Appellate Division held that driving while intoxicated (DWI), a Vehicle and Traffic Law felony (Vehicle and Traffic Law § 1192 [former (5)]), may not serve as the predicate for a conviction of felony assault. In so holding, the Court stated (at 220), "On the facts of this case, defendant could have been found guilty only of second degree vehicular assault, a class E felony (Penal Law § 120.03), because the victim of the incident suffered serious physical injury. Had the victim died defendant could have been convicted of second degree vehicular <mask>, a class D felony (Penal Law § 125.12). Defendant, however, was convicted of first degree assault under Penal Law § 120.10 (4), a class C felony, a more serious crime than could have been charged if the victim had died. This is an unreasonable and unjust result and could not have been intended by the Legislature”.


B. Misstatements of Law As defendant notes in his appellate briefing, his defense counsel argued that he, at most, “committed <mask>, having been in fear for his life and/or provoked because of the violent attack.” Addressing this argument, the prosecutor stated during the rebuttal argument: “As far as manslaughter, I touched on it just briefly. Now, the defendant was actually provoked? You could say, yeah. I mean, you’re knocked to the ground. That would be provocation. Intense emotion, you could argue that [defendant] would have it at that point. But does it -- is it an intense emotion that obscures his reasoning and judgment?” The prosecutor argued defendant was not “under the direct and immediate influence of the provocation” because of the separation of time between the initial fist fight in the parking lot and the shooting. After arguing that a reasonable person standard applied to the question of provocation, the prosecutor continued: “So a person of average disposition, are they going to run and grab the gun out, or are they going to go talk to that officer or security [guard] and point the people out? Or maybe run over and continue the fight once the brothers are with them? Is a person of average disposition going to take that gun out and then conceal it and walk out to the street?” Defense counsel objected that the argument misstated the law. The trial court overruled the objection, stating: “I don’t think it misstates the law necessarily. Each side has their interpretations. The jury’s heard the evidence. They’ve got the instructions. [¶] Go ahead.” The prosecutor continued: “[I]t talks about a person with an average disposition, are they going to act a certain way?” As our Supreme Court explained in People v. Beltran (2013) 56 Cal.4th 935: “Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, ‘ “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an


The accusatory pleading in this case is of no aid to Munoz. The pleading stated, in relevant part, "On or about June 28, 2014, in the County of Los Angeles, the crime of MURDER, in violation of PENAL CODE SECTION 187(a), a Felony, was committed by RYAN MUNOZ, who did unlawfully, and with malice aforethought murder GEVORK KRPIKYAN, a human being." Munoz does not dispute that this does little more than repeat the statutory definition of murder from the Penal Code, and does not supply the additional elements that would encompass gross vehicular <mask> while intoxicated, namely the use of a vehicle and intoxication. (Cf.


After the defense had rested, the circuit court considered the jury instructions requested by the parties. The circuit court denied defense counsel's request for the <mask> instruction and instructed the jury on capital murder, first-degree murder, and second-degree murder. The jury convicted appellant of first-degree murder. For his sole argument on appeal, appellant contends that the circuit court erred by declining to instruct the jury on manslaughter as a lesser-included offense of capital murder and first-degree murder.


amended section 1170.95 to expressly include within its reach certain convictions for attempted murder and voluntary <mask>. In light of this new legislation, we remand Montgomery’s case for the superior court to appoint counsel for Montgomery and to determine in accordance with the procedures described in section 1170.95, subdivision (c), and People v. Lewis (2021) 11 Cal.5th 952 (Lewis) whether Montgomery has made a prima facie showing he is entitled to relief. FACTUAL AND PROCEDURAL BACKGROUND 1. Montgomery’s Conviction for Attempted Murder As described in our opinion affirming Montgomery’s convictions (People v. Montgomery, supra, B208165), the evidence at trial established that Montgomery was the driver of a van under surveillance by the Los Angeles Police Department. Saul Eady, Montgomery’s codefendant, and a third man were also in the van. As detectives monitored the van, one of them observed a person in the passenger side of the van reach out and fire four or five shots toward an alley. Detectives went to the alley to investigate and found Curtis Muse, who admitted he had been a member of the Crips at one time. The area where the shooting occurred was controlled by the Black P Stones, a rival Bloods gang. Muse was uninjured, but his car had several bullet holes in it. Muse told the detectives he had been in the driver’s seat of his car at the time of the shooting. Detectives took control of the van after it was parked and its occupants left. From its interior they recovered a nine- millimeter semiautomatic handgun and a pump-action shotgun. Shell casings found at the shooting scene were matched to the handgun. A substantial quantity of rock cocaine and marijuana was also found inside the van. The People’s gang expert testified


A defendant’s conduct is a "sufficiently direct cause” of injury or death when the "ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused”. (People v Kibbe, supra, at 412.) To establish a sufficiently direct link between the risk that should reasonably have been perceived and the injury subsequently sustained, more than mere cause and effect must be demonstrated. Because the standard for criminal liability is higher than that required for civil liability, it is not enough to show that as a result of a variety of dangerous conditions, injury was foreseeable. Rather, before an injury may be said to have been "directly caused” by reckless conduct preceding it, the People must prove it was foreseeable that the injury would oc*112cur in the particular manner that it did.1 (People v Roth, 80 NY2d 239, 243-244 [1992].) In other words, in order to sustain a charge involving reckless conduct that results in injury or death, the People are required to submit proof from which the Grand Jury could conclude that the actual, specific cause of injury was a reasonably foreseeable result of the defendant’s conduct. (People v Roth, supra, [in prosecution for reckless <mask> and criminally negligent homicide, evidence before Grand Jury insufficient to support conclusion that the defendants should have foreseen that their employee would place unprotected trouble light in path of high pressure washer during cleaning of petroleum tank trailer and that explosion causing spark would result from this combination]; People v Kibbe, supra; see also, People v Stewart, 40 NY2d 692 [1976] [death of victim not foreseeable since death occurred after surgeon closed stomach wound inflicted by defendant and operated on an unrelated hernia]; People v Lowe, 214 AD2d 1 [1st Dept 1995] [making weapon accessible to intoxicated person does not support conviction for criminally negligent homicide]; People v Brown, 193 AD2d 496 [1st Dept 1993] [police officers’ collision with an ambulance while responding to a report that a police car had been stolen could not be reasonably foreseen as being related to the acts of the defendant].)2


2 In an uncodified statement of its intent in enacting Senate Bill 775, the Legislature declared the legislation “(a) Clarifies that persons who were convicted of attempted murder or <mask> under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories. [¶] (b) Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding petitioners’ right to counsel and the standard for determining the existence of a prima facie case. [¶] (c) Reaffirms that the proper burden of proof at a resentencing hearing under this section is proof beyond a reasonable doubt. [¶] (d) Addresses what evidence a court may consider at a resentencing hearing (clarifying the discussion in People v. Lewis, supra, at pp. 970-972).” (Stats. 2021, ch. 551, § 1.) 3 In her opening brief Duarte argued the superior court’s summary denial of her petition without appointment of counsel violated the plain language of section 1170.95, subdivision (c), as well as her right to due process. She also argued Senate Bill 1437 applied to accomplice liability for attempted murder, not just murder, and the contrary interpretation of the legislation would violate her right to equal protection. The Attorney General in his respondent’s brief argued any error in not


. The “specified offenses” in the indictment upon which the hate crimes charges are based are: murder in the second degree (Penal Law § 125.25 [3]), <mask> in the second degree (Penal Law § 125.15 [1]), assault in the first degree (Penal Law § 120.10 [4]), attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [1]), and attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]). Each of these crimes are “specified offense[s]” as defined by Penal Law § 485.05 (3).


Following a jury trial, defendant was convicted of <mask> in the first degree in connection with his wife’s death. The People established that the victim died as a result of injuries that she sustained after a physical attack. Defendant, who was the last person to see her alive, admitted that he and the victim had engaged in a physical altercation after he found her talking on the phone with a former paramour. According to defendant, however, his physical attack consisted only of hitting the victim twice on the head with a hairbrush and throwing a phone at her. In his defense, he presented expert testimony that the elevated levels of alcohol and prescription medication found in the victim’s system at the time of her death were lethal, and that the majority of the victim’s physical injuries, consisting of 12 fractured ribs and a lacerated liver, were the result of the improper performance of CPR after she had died of a drug and alcohol overdose.


The Commission Staff Notes of the Staff of the State Commission on the Revision of the Penal Law and Criminal Code (Gilbert, Criminal Law and Procedure of New York [1975], pp *1422A-1, 2A-61-62) offer only the following as an explanation of "extreme emotional disturbance”: "[T]he phrase 'in the heat of passion,’ is abandoned as the criterion of mitigation in favor of the phrase, 'under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse.’ This standard, adopted from the equivalent <mask> provision of the Model Penal Code [§ 210.3(b)], is, in the Commission’s opinion, superior to 'heat of passion’ and other traditional criteria from the standpoints of both logic and general fairness (see Model Penal Code Commentary, Tentative Draft No. 9, pp. 28-29).”


The defendant pleaded guilty to <mask> in the second degree for shooting his girlfriend in the head. After serving the minimum of his indeterminate term of 2 to 6 years imprisonment, the defendant was paroled. Upon being paroled, he was informed by the Immigration and Naturalization Service that he was subject to deportation to his native Jamaica because he had been convicted of a crime involving moral turpitude. The defendant then brought the instant motion to vacate his judgment of conviction for manslaughter in the second degree, and to substitute therefor a conviction for criminally negligent homicide, a crime not involving moral turpitude. The defendant alleged that his plea was involuntarily made because the court failed to inform him that he could be deported for being convicted of manslaughter in the second degree. The defendant also alleged that he received the ineffective assistance of counsel, because his counsel failed to *799inform him of the possibility of his deportation. The Supreme Court (Douglass, J.), vacated the defendant’s judgment of conviction and set the matter down for an immediate trial (see, People v Ford, 157 Misc 2d 668). The People appeal from this order, claiming that the court improperly vacated the defendant’s judgment of conviction.


The particular language of the Security policy’s criminal activity exclusion has apparently not been previously litigated. However, a similar clause was found not to automatically preclude coverage upon a conviction of a reckless offense. In Allstate Ins. Co. v Zuk (78 NY2d 41, 44 [1991]), excluded from coverage was: “ ‘bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person’ (emphasis supplied).” Based upon this language the Court of Appeals held that a criminal conviction of second degree <mask> premised upon recklessly causing a death did not collaterally establish the death was “reasonably expected to result” from the acts of the perpetrator. (Supra, at 47.) The Court recognized that a person may engage in behavior that involves a calculated risk without expecting that an accident will occur.


The judgment is modified to vacate the sentence imposed, to strike the 25-year-to-life enhancement from the sentences imposed under counts two and four and stay the sentences imposed under counts two and four, and to vacate the stay with respect to the sentence imposed by the trial court under count one for attempted voluntary <mask>, imprisonment for a term of 12 years. In all other respects the judgment is affirmed.


If a hearing is held to establish whether the wrong was intentional And a felony, the Surrogate’s Court may try the issue de novo (Matter of Eckhardt, 184 Misc. 748, supra). This court agrees that if one were acquitted of any crime or pleaded guilty or were convicted of a crime which did not constitute forfeiture after a hearing, this court could, nevertheless, because of the difference of the burden of proof in civil proceedings, find that the elements of forfeiture exist. In the criminal proceedings the decedent’s surviving spouse took the stand and testified on her own behalf and was found guilty of <mask> in the *461second degree. Accordingly since the burden of proof is stricter in the criminal proceedings and since she testified, this court in no event could find her actions to constitute less than manslaughter in the second degree (Grand v. City of New York, 32 N Y 2d 300, supra). The court must now decide whether that is enough to constitute forfeiture or whether a hearing should be held to determine if an “ intentional ” crime was committed.


Moreover, contrary to defendant’s contentions, the notations on the verdict sheet do not constitute a “verdict” by the jury. In Matter of Oliver v Justices of N. Y. Supreme Ct. (36 NY2d 53 [1974]), the trial court submitted a count of murder in the second degree, and the lesser included offense of <mask> in the first degree to the jury. During deliberations, the jury submitted a note indicating a partial verdict as to one count, and a deadlock as to the other count. Without any requests by either party for a partial verdict, a mistrial was declared. Defendant subsequently submitted affidavits from 9 of the 12 jurors, indicating that the partial verdict was a unanimous acquittal of the murder charge. Based on these affidavits, defendant moved to dismiss the murder count, claiming he was acquitted of that charge. The Court of Appeals held that “whatever the actual substance of the jury’s partial verdict, the decision upon the defendant’s guilt or innocence was not announced in court by the foreman and consequently was not recorded on the minutes. Thus, on the present facts there was no ‘verdict’.” (Matter of Oliver v Justices of N. Y. Supreme Ct., 36 NY2d, at 57.)


Initially, we agree with the trial court that, contrary to defendant's argument, the relevant question is not whether defendant was impaired at the time of the accident, but whether she was acting with gross negligence. Defendant was charged with vehicular <mask> with gross negligence under section 192, subdivision (c)(1), which is defined in relevant part as "driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." In contrast, section 191.5 defines the separate offense of "[g]ross vehicular manslaughter while intoxicated," which is "the unlawful killing of a human being without malice aforethought, in the driving of the vehicle, where the driving was in violation of [Vehicle Code] section 23140, 23152, or 23153, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence." (§ 191.5, subd. (a).) As the Attorney General notes, "although both offenses require the prosecution to prove gross negligence, only section 191.5, subdivision (a) requires proof of intoxication or impairment. This is why vehicular manslaughter with gross negligence in violation of section 192, subdivision (c)(1), is a lesser included offense of gross vehicular manslaughter while intoxicated. (See People v. Miranda (1994) 21 Cal.App.4th 1464, 1468 [26 Cal.Rptr.2d 610].)" Accordingly, the prosecution was not required to establish defendant's impairment at the time of the accident and the evidence was not admitted for this purpose.2


How, gentlemen, before you can convict the defendant of the crime of <mask>, there is another element almost always presented, and an important element, to which I shall now call *403your attention; and that is, the element of intent. It ik not necessary, gentlemen, that the defendant intended to violate the law. The law presumes that every person knows its provisions. It is certainly not necessary that the defendant should have anticipated the consequences of his ac-ts, if he committed them; but you must find an intent to do the unlawful thing in question,—the specific act,—to fight, contrary to the statute, to commit a battery on Riordan; that is, that there was intent not to violate section 488, section 458, or whatever the number was; not an intent to commit as a-srult and battery with the idea that he knew that he was committing it; but an intent to do the act which constituted a violation of those provisions. Now, gentlemen, this fact of intent is proved like any other fact in the case. You may infer this fact from other facts in the case; and the defendant is presumed, as has been suggested during the trial, to intend the ordinary and probable consequences of his acts. Upon this subject I shall read to you, gentlemen, and incorporate as a part of my direction to you, from the opinion of the late Mr. Justice Ruger, in the case of People v. Conroy:


The medical evidence before the Grand Jury was, in fact, that the victim was beyond medical help to retain life and that she would surely die within moments or days. Whether the cessation of the victim’s heartbeat was occasioned by intervention of medical personnel is unclear. Nevertheless, the clear medical evidence was that at the moment of death the initial stabbing continued to operate as a significant direct contribution thereto. The evidence and exhibits submitted and instructions given to the Grand Jury were, therefore, legally sufficient to establish the crimes charged (Penal Law §§ 125.20 [<mask> in first degree], 120.10 [assault in first degree], 265.01 [criminal possession of weapon in fourth degree]) which, if unexplained or uncontroverted would warrant a conviction after trial. Defendant’s motion for dismissal of the indictment because of insufficiency in the Grand Jury presentation and/or for disclosure of the Grand Jury minutes, except as hereinafter noted, is denied.


APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Mike Camacho, Judge. Reversed and remanded with directions. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, Charles S. Lee, Daniel C. Chang and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent. _______________________ Maria Duarte pleaded guilty in 2005 to two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 and admitted criminal street gang (§ 186.22, subd. (b)(1)) and firearm enhancement allegations (§ 12022.53, subds. (b) & (e)). On March 1, 2021 the superior court summarily denied Duarte’s petition for resentencing under section 1170.95, ruling Duarte was ineligible for relief because she had been convicted of attempted murder, not murder. While Duarte’s appeal was pending, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1, 2022, which amended section 1170.95 to expressly include within its reach certain convictions for attempted murder and voluntary <mask>. In light of this new legislation, we remand Duarte’s case for the superior court to permit Duarte to amend her petition and, following amendment, to appoint counsel for Duarte and to determine in accordance with the procedures described in section 1170.95, subdivision (c), and People v. Lewis (2021) 11 Cal.5th 952 (Lewis) whether Duarte has made a prima facie showing she is entitled to relief. FACTUAL AND PROCEDURAL BACKGROUND 1. Duarte’s Convictions for Attempted Murder According to testimony at Duarte’s preliminary hearing and admissions by Duarte at her plea hearing, Duarte drove a


Court of Appeals’ Decision The Court of Appeals found no merit in Morton’s insuffi- cient evidence and ineffective assistance of counsel claims and affirmed the district court’s sentence of 15 to 20 years’ impris- onment for Morton’s <mask> conviction. 5 However, the Court of Appeals found the district court abused its discretion in imposing a sentence of 30 to 40 years’ imprisonment for Morton’s possession of a firearm during the commission of a felony conviction and accordingly reduced it. In finding an abuse of discretion regarding Morton’s sen- tence on count II, the Court of Appeals acknowledged the State v. Morton, 29 Neb. App. 624, 957 N.W.2d 522 (2021). - 363 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. MORTON Cite as 310 Neb. 355


9. consequences doctrine, or <mask>,” may file a petition to have that conviction vacated under certain circumstances. (§ 1170.95, subd. (a), italics added.) The amendments also codified the holding in Lewis that a petitioner has the right to appointment of counsel, if requested, prior to the court making the prima facie finding: “Upon receiving a petition in which the information required by this subdivision is set forth …, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.” (§ 1170.95, subd. (b)(3).) After appointment of counsel, the parties shall have the opportunity to submit briefing, and “the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.” (§ 1170.95, subd. (c).) If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so. (§ 1170.95, subd. (c).) Senate Bill 775 also amended section 1170.95 to clarify that after the court issues the order to show cause and conducts a hearing, the prosecution has the burden to prove beyond a reasonable doubt that petitioner is guilty of murder or attempted murder under the amended versions of sections 188 and 189. (§ 1170.95, subd. (d)(3).)


the trial court should have instructed the jury: 'The fault or lack of fault of Robyn Curtis is a circumstance to be considered along with all the other evidence to determine whether the defendant's conduct was or was not the direct cause of Robyn Curtis' death.' See Chastain, 265 Kan. at 25, 960 P.2d 756. Given the evidence of Curtis' fault and consistent with Chastain, such an instruction would have been warranted in this case. In a case without this evidence, however, the trial court should use PIK Crim.3d 56.06-A, without any modification, to instruct the jury on the crime of involuntary <mask> while driving under the influence of alcohol or drugs." 36 Kan. App. 2d at 372.


The defendant was indicted on November 9,1961 by the Grand Jury of Nassau County for the crime of murder in the first degree (2 counts). On November 14, 1961, the defendant appeared in the Nassau County Court. There, the court directed that a ‘ ‘ not guilty ’ ’ plea to the charge be entered and assigned counsel to represent the defendant. Subsequently, on November 26, 1962, the trial was commenced. On December 18, 1962, during trial, a motion to amend his plea of £ £ not guilty ” to a plea of “not guilty by reason of insanity” was granted. On the following day, December 19, 1962, the defendant withdrew his plea of “ not guilty by reason of insanity ” and substituted therefor a plea of “ guilty ” to <mask> in the first degree (the second count of the indictment) in satisfaction of the indictment. On February 1, 1963, he was sentenced as a prior felony offender to a term of imprisonment, the maximum of which was 40 years, and the minimum of which was 30 years.


The facts relevant to this request are: Defendant was an invited social guest in the apartment of his girlfriend. He had visiting with him his niece and nephew, both minors. The girlfriend was at home with her minor son. Complainant, a former boyfriend, knocked vigorously on the apartment door (he lived in the same building, on a different floor). Complainant had previously threatened defendant and defendant knew that complainant was on probation for involuntary <mask> in the State of Pennsylvania. During the door knocking, complainant directed oral abuse at defendant. Defendant went to the *220door, and attempted to reason with complainant. When the knocking subsided, defendant opened the door. The girlfriend and complainant went down the common apartment hallway and talked. Defendant got a kitchen knife. When the girlfriend’s minor son went in to the outside common hallway, defendant went after him. Complainant then came back to the hallway area in front of the opened apartment door where defendant was standing. Amid further oral abuse from complainant, complainant lunged at defendant. A scuffle ensued, during which defendant stabbed complainant.*


Three counts in each indictment charge <mask> in the first degree and three mapslaughter in the second. The first count charges common law manslaughter in the first degree. It alleges, in substance, that the defendants did willfully and feloniously choke, suffocate and strangle the deceased by means of fire and of the smoke thereof, by reason whereof the deceased died. The defendants demur to this count on the ground that the “ mere fact that death resulted is not alone sufficient to justify the inference that the weapon was deadly, or that the means of death was likely to produce death.” They further contend “ that the court must be able to say beyond a reasonable doubt that death is likely to result when a person is burned.” The defendants’ argument might well be directed to this point if this were a charge of assault in the first degree. This being a charge of manslaughter and the fact and cause of death being alleged, the argument is inapplicable. Whether the allegations in this count are susceptible of proof is not a matter to be considered on demurrer, and the demurrer thereto is disallowed.


Involuntary <mask> is a lesser included offense of murder; thus, a trial court must instruct the jury on involuntary manslaughter "[i]f the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence defendant committed *154involuntary manslaughter." ( People v. Cook (2006) 39 Cal.4th 566, 596, 47 Cal.Rptr.3d 22, 139 P.3d 492.)


An examination of the New York statutes applicable herein compels a focus on Penal Law §§ 125.00, 125.05 (1); §§ 125.10 and 125.12. Penal Law § 125.00 is a general section which gives a generic definition of homicide. The scheme of the statute provides definitions of various types of homicide in later sections including murder, <mask>, abortion and criminally negligent homicide. The applicable Penal Law provisions state the following:


Pursuant to Section 565.024, "[a] person commits the crime of involuntary <mask> in the first degree if he or she ... [r]ecklessly causes the death of another person." Section 565.024.1(1). "A person 'acts recklessly' or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Section 562.016.4.


To make the accidental killing of Mr. Hasely a crime there must be something more than ordinary negligence. The killing must have been the result of culpable negligence. In People v. Angelo (246 N. Y. 451, 453) the court says “ Any killing is homicide — either murder or <mask> unless the act is excusable or justified. With the latter exception we do not here deal. It is excusable, however, if the homicide is committed *111by an accident or misfortune in doing a lawful act by lawful means with ordinary caution without unlawful intent. * * * ‘ Ordinary caution ’ must mean the absence of culpable negligence * *


Doctor Pasquale determined the cause of death to be “asphyxia and hypothermia due to environmental exposure to cold temperature” and the manner of death to be homicide (grand jury minutes, Apr. 11, 2007, at 14). “Homicide” was later defined by the ADA as, “any conduct which causes the death of a person under circumstances constituting Murder, <mask> in the First or Second Degree, or Criminally Negligent Homicide” (grand jury minutes, Apr. 12, 2007, at 8; see Penal Law § 125.00).


We find the motion court did not clearly err in denying this claim. First, unlike voluntary <mask>, "[s]elf defense is not a technical or sophisticated legal defense that is beyond the knowledge of a lay person." Muhammad, 367 S.W.3d at 663. Like in Muhammad, the record before us does not indicate Appellant was unaware of the simple and commonly known concept of self-defense before pleading guilty. Id.


These legal standards for proving involuntary <mask> reveal the flaw in defendant's argument that he could not be convicted without expert testimony. Defendant asserts expert testimony was required to establish the duty, or standard of care, with which he was required to act, and whether his conduct amounted to a breach of that duty. But expert testimony is only appropriate where the subject of the testimony is "beyond the common experience." ( Evid. Code, § 801, subd. (a).) Whether a person of ordinary prudence would foresee a risk of death or bodily harm in certain conduct is not beyond common experience-it is necessarily within it. Expert testimony is not required where the question is what a reasonable person would do.


We, however, need not decide that question. As we have explained, there is another valid rationale for creating the separate vehicular <mask> statutes, namely to create a wider range of penalties for an all-too-common form of homicide. The fact that, as a consequence of this statutory scheme, courts no longer must instruct on either involuntary or vehicular manslaughter as a lesser included offense of a Watson murder does not render the scheme invalid. In the absence of infringement on a fundamental right, the Legislature may address a problem as it sees fit despite the "availability of less drastic remedial alternatives." ( Johnson , supra , 120 Cal.App.4th at p. 958, 15 Cal.Rptr.3d 921.)


The defendants in this count are described as “ the owners and proprietors of a certain factory, to wit, a certain workshop and manufacturing and business establishment which then. and there occupied the whole of the ninth floor of a certain building situated at the comer of Washington place and Greene street and were then and there the lessees and tenants of the said floor.” The defendants insist that because this count fails to describe them as owners and operators of a teroant factory it must be resolved in their favor. It seems unnecessary to state that owners and proprietors in control of a factory in which employees have suffered injury from the failure of such owners to perform their duty have been held responsible under common andi statutory law; but the important consideration here is .that the statute has made the non-performance of a particular duty a misdemeanor, which, in this instance, becomes the foundation of a charge of <mask> in the first degree and the defendants are entitled to a strict construction of the statute.


Admittedly, Jackson was the first decision to use the phrase "nested lesser" in describing those included offenses that consist of a subset of the elements of the greater offense. But a rose by any other name is still a rose. This Court's pre- Jackson cases make clear that, at the time of Meiners' appeal, a reasonably competent attorney would have understood the idea captured by this phrase and, therefore, would have known Meiners could not commit second-degree murder without committing involuntary <mask>. See, e.g., State v. Harris , 620 S.W.2d 349, 355 (Mo. banc 1981) ("[I]t is impossible to commit the greater [offense] without first committing the lesser"). Accordingly, a reasonably competent attorney would have known there was a basis in the evidence for the jury to acquit Meiners of second-degree murder and convict him of involuntary manslaughter-namely, the jury's right to disbelieve Meiners acted knowingly and to conclude that he instead acted recklessly.


Q-eorge W. Cole stands indicted for the murder of L. .Harris Hiscock, on June 4,1867, at Stanwix Hall, in the ■ city of' Albany. Under this indictment he may, if the .evidence justifies it) be convicted of either of the two de*323grees of murder, or of the four degrees of <mask>, or acquitted upon the ground of justifiable or excusable homicide, or of an absolute or temporary deprivation of reason, the result of settled insanity, or of a momentary, but ungovernable, frenzy, induced by the circumstances of the particular occasion.


In Mullaney, supra, p 698, the statute draws a distinction between murder and <mask>, "while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns”. Here, too, the New York Legislature defined separate degrees of robbery without mandating that the People show "the fact upon which it turns”. As in Mullaney, the punishments for the two different crimes vary greatly. An accused would face the 25-year permissible sentence for robbery in the first degree "when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence” (p 703).


This court has held that “[a] criminal conviction either by plea or after trial is conclusive proof of its underlying facts in a subsequent civil proceeding and collaterally estops a party from relitigating the issues” (Estate of Mirissis, NYLJ, Mar. 16, 1993, at 25, col 3, citing Merchants Mut. Ins. Co. v Arzillo, 98 AD2d 495 [1984]; Grayes v DiStasio, 166 AD2d 261 [1990]). In Mirissis, this court held that a de novo hearing was not necessary in order to prove that the wrong was intentional where the killer had entered a plea to <mask> in the first degree (see also Matter of Loud, 70 Misc 2d 1026 [1972]). Nevertheless, this court held that before declaring a forfeiture on the part of the killer, “the court should review the transcript of the minutes of the plea.” Likewise, the court found that since “the record of conviction indicates that a notice of appeal was filed . . . the guardian ad litem should report on the status of same” (Estate of Mirissis, NYLJ, Mar. 16, 1993, at 25, col 3).


In Mullaney, the statute drew a distinction between murder and <mask> (p 698), "while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns”. The presence or absence of entrapment, however, in no way affects the prosecution’s duty to prove beyond a reasonable doubt every element of the crime charged, for "conduct is not less criminal because the result of *19temptation” (Sherman v United States, supra, p 380 [Justice Frankfurter, concurring]; see People v Bornholdt, 33 NY2d 75, p 85, supra; People v Laietta, 30 NY2d 68, 75, supra). In fact, the jury does not reach the entrapment question, unless it finds the defendant guilty beyond a reasonable doubt of all the elements of the crime before them.


court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 20 [3] It is well established that an appellate court will not disturb sentences within the statutory limits unless the district court abused its discretion in establishing the sentences. 21 When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering well- established factors and any applicable legal principles. 22 [4,5] The relevant factors for a sentencing judge to consider when imposing a sentence are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. 23 The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all the facts and cir- cumstances surrounding the defendant’s life. 24 [6,7] We find that it was inappropriate for the Court of Appeals to second-guess the district court’s discretion in sen- tencing Morton under the crime of possession with the predi- cate offense of <mask>, by opining the State’s factual basis “best” supported a crime he was not convicted of, unlaw- ful discharge of a firearm. 25 So long as the facts provide a sufficient basis to find all elements beyond a reasonable State v. Stabler, 305 Neb. 415, 940 N.W.2d 572 (2020). State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001). State v. Greer, supra note 18. See id. Id. § 28-1212.02. - 367 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. MORTON Cite as 310 Neb. 355


The court finds that this is the case here. There is no direct proof of intoxication submitted, or that such intoxication caused the accident. However, the defendant presents the affidavit of the office manager of defendant’s law firm, Christopher Roselli, who states that the police report revealed that plaintiffs assignor, Luis Vargas, was arrested at the accident scene on charges of driving while intoxicated. He further states that he spoke to Orange County Assistant District Attorney Steven Goldberg, who informed him that Vargas was indicted on 34 charges, including two counts of driving while intoxicated. A formal request for a copy of the indictment was made, and the results of that request, a copy of the indictment, is annexed to defendant’s reply papers. Among other things, the indictment *500contains not only a charge of driving while intoxicated, but also of vehicular <mask> in the first degree, as a passenger in Vargas’s vehicle was ejected and killed as a result of his operation of the vehicle while under the influence of alcohol. Other felony counts are based on injuries to other passengers. Thus, in addition to allegedly driving while intoxicated, his operation of the vehicle may have resulted in his having been injured while committing a felony.


Thus, based upon our determination that the evidence is not sufficient to establish beyond a reasonable doubt that defendant intended to kill the victim, but it is sufficient to establish beyond a reasonable doubt that he intended to cause serious physical injury to the victim, which resulted in the victim’s death (see Penal Law § 125.20 [1]), we conclude that the conviction of murder in the second degree should be reduced to <mask> in the first degree pursuant to CPL 470.15 (2) (a). Accordingly, we conclude that the judgment should be so modified, and the matter should be remitted to County Court for sentencing on the manslaughter conviction (see CPL 470.20 [4]).


The City further asserted that as Officer Gonzales drove her patrol car north on Chartres Street and crossed the intersection at Texas Avenue, where she had a green light, the car driven by Moser, who had failed to stop at a red light, "violently" struck the patrol car on its left side. Law enforcement officers took Moser, who admitted at the scene that she had previously consumed "6-7 shots of alcohol" and "shouldn't have been driving," to a hospital, where personnel measured her blood-alcohol concentration at 0.189 grams. Moser later pleaded guilty to the offense of intoxication <mask>, and a court found her guilty and assessed her punishment at confinement for eight years.


Prior to this proceeding the children’s natural father, respondent herein, was convicted of second degree <mask> and sentenced to an indeterminate term. He is presently incarcerated in a State correctional institution and has been cited there to show cause why his consent to the proposed adoption should not be dispensed with on the grounds of his abandonment of the infant children and loss of civil rights (Domestic Relations Law, § 111).


Section 61 of the Correction Law provides that any male person between the ages of 16 and 21 years adjudicated a juvenile delinquent or convicted of any offense or of a misdemeanor, or of a felony (except mentally defectives), shall, notwithstanding any inconsistent provision of law, be committed to the department reception center for classification, etc. The next sentence then provides: ‘1 The reception center shall also receive any male person adjudicated a juvenile delinquent, who is fifteen years of age at the time of the commission of any act which, if committed by an adult, would be ” assault in the first *709degree, burglary in the first degree, <mask> in the first degree, rape in the first degree, robbery in the first degree, sodomy in the first degree, or any crime which would be punishable by death or life imprisonment. Since the relators did not commit any of the above-listed crimes, they do not come within the above exception as to persons under 16 years of age.


The next morning, Friday May 19, 2017, the jury (as had been arranged) began deliberations without the court formally reconvening. In a 11:30 a.m. note, the jury asked, "If you believe its 2nd degree murder does that mean its automatic man-slaughter?" The court and parties discussed the question in chambers. The written response given was "No" and the jury was referred to pattern instructions on murder and voluntary <mask> and the instruction on how to deliberate, that is, in part that "You may consider these different kinds of homicide in whatever order you wish."