Legal Question in Criminal Law in California

A jury found defendants markas, ralph, and McClish not guilty of first degree murder, but guilty of second degree murder in the killing of Allen (count 1; Pen. Code, � 187, subd. (a); undesignated statutory references are to the Penal Code), and of the attempted murder of Michael (count 2; �� 664/187, subd. (a)).[1] The jury also found that Ralph and McClish were felons in possession of a firearm (counts 3 & 4; � 12021, subd. (a)(1)).[2] The jury further found as to counts 1 and 2 that markas personally discharged a firearm causing great bodily injury or death (� 12022.53, subd. (d)), that McClish personally used a firearm (� 12022.53, subd. (b)), and that all defendants were armed in the commission of the offenses (� 12022, subd. (a)(1)). The trial court found thereafter that McClish had two prior convictions for serious felonies (�� 667, subds. (a), (b)-(i)) and had served three prior prison terms (� 667.5, subd. (b)). All defendants received life terms in state prison.

Ralph and McClish contend there is insufficient evidence to support their convictions on counts 1 and 2. Demarkas contends the trial court misinstructed the jury as to second degree felony murder, the intent required for second degree murder, imminent danger, imperfect self-defense, and aider and abettor liability; McClish raises a separate objection to the instruction on the last point. All defendants join in each others� contentions so far as applicable to themselves.

Rejecting all of defendants� contentions, we shall affirm. However, we have detected errors in the abstract of judgment as to McClish and shall remand the matter to the trial court with directions to correct the errors.

I am concerned about one person Markas. Do you think there's any hope for him? He won the appeal and was given 25 years which he has to do 85% of that. Do you think he can do another appeal and get lesser time that that?


Asked on 12/22/10, 4:29 am

1 Answer from Attorneys
Robert Marshall Law Office of Robert L, Marshall

According to what you posted, he did NOT win an appeal. The court rejected his arguments, and upheld his conviction and sentence.

The court found errors in another defendant's abstract of judgment, which is the paperwork sent to the state prison that specifies the sentence.

Generally, defendants only get one shot at an appeal. If they lose, they must ask a higher court to hear the appeal within a very short period of time.

Appeals are very complicated and take a complete review of all of the case documents and transcripts. The attorney who did the appeal had read everything, and can give you an informed opinion of his chances at the next step; a stranger on the Internet, who had only read a few paragraphs of the opinion that you posted, cannot.

However, very few appeals are successful, and higher courts only agree to consider a very few of the appeal that are rejected in the lower courts.

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Answered on 12/27/10, 7:51 am


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