People v. Thompson CA2/7 ( 2022 )

Filed 10/10/22 P. v. Thompson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B313182
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A648471)
v.
SEKOU KWANE THOMPSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed.
Robert H. Derham, 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, Daniel C. Chang and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Sekou Kwane Thompson appeals from the superior court’s
order after an evidentiary hearing denying his petition for
resentencing under Penal Code section 1172.6.1 He argues
substantial evidence did not support the superior court’s ruling
he could be convicted under current law of murder as a direct
aider and abettor and as a major participant in a felony murder.
We conclude substantial evidence supported the former ruling.
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Thompson of First Degree Murder
Late one evening in July 1988 Lisa Lee and her two-year-
old son Dionsa returned home after spending the evening with
Lee’s mother. (People v. Thompson (1992) 7 Cal.App.4th 1966,
1969 (Thompson I).) Lee gave Dionsa a bath and brought him to
his bedroom, where he jumped up and down on the bed. (Ibid.)
Close to midnight, Lee reached for Dionsa’s pajamas and heard
the bedroom window break. (Ibid.) She looked at the window
and saw a “fireball” fly into the room and roll under the bed.
(Ibid.) The bed went up in flames, and the flames engulfed
1 Statutory references are to the Penal Code. At the times
Thompson filed his petition and the superior court denied it,
section 1172.6 appeared at section 1170.95. Effective June 30,
2022, the Legislature renumbered section 1170.95 as
section 1172.6 without making substantive changes to the
statute. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer to
section 1172.6.
2
Dionsa. (Ibid.) Two weeks later Dionsa died from his injuries.
(Ibid.) Lee suffered minor injuries.
The People filed a multicount information against
Thompson, Leonard Nixon, and Anthony Snead. (Thompson I,
supra, 7 Cal.App.4th at p. 1970.) Detective Joe Callian of the Los
Angeles Police Department investigated the arson and Dionsa’s
death. Detective Callian testified at a preliminary hearing that
he listened in on a phone conversation Lee’s sister Lana had with
several individuals who implicated Snead and Thompson.
Detective Callian went to Snead’s house where he found Snead
and Thompson, both of whom agreed to go to the police station
with Detective Callian.
After Detective Callian read Snead and Thompson their
rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct.
1602, 16 L.Ed.2d 694], Snead told Detective Callian that on the
evening of the incident he and Thompson met with Nixon in a
parking lot and “had a conversation about putting in some work
for the home boy.” Snead explained “putting in some work”
meant “to cocktail or firebomb Lana or Lisa’s house.” Nixon told
Snead and Thompson that he would “go along with them,” and
Thompson drove them to a gas station. At the gas station, Nixon
filled two or three 40-ounce beer bottles with gasoline while
Thompson put air in the car’s tires. Snead or Nixon had found
the bottles behind a house, and Nixon had “picked up some rags”
from the same place.
Thompson told Detective Callian that he heard Snead and
Nixon have a conversation about “cocktailing Lana or Lisa’s
house.” After Nixon “agreed to go,” Thompson drove them to one
gas station for gasoline, and then to another gas station for
matches. It is unclear from the record which of the three men got
3
the matches at the second gas station. Thompson told Detective
Callian he then drove to Lee’s house, while Nixon tore up the
rags and stuffed them into the bottles. When they arrived,
Thompson parked the car around the corner from the house, and
Snead and Nixon got out of the car with the Molotov cocktails.2 A
“couple minutes later they came running back around the corner
and got in the car,” and Thompson drove away. Snead told
Detective Callian that they targeted Lee because she had a gold
chain that belonged to Snead’s friend. Thompson told Detective
Callian that he knew there was a motive for the attack.
A jury convicted Thompson of first degree murder (§ 187;
count 1), exploding or igniting a destructive device causing death
(former § 12310, now §18755, subd. (a); count 3), and exploding or
igniting a destructive device causing bodily injury (former
§ 12309, now § 18750; count 4); the jury acquitted Thompson of
arson causing great bodily injury (§ 451, subd. (a); count 2).
(Thompson I, supra, 7 Cal.App.4th at p. 1970.) The trial court
sentenced Thompson to prison for life without the possibility of
parole for exploding or igniting a destructive device causing
death, and concurrent terms of 25 years to life for first degree
murder and seven years for exploding or igniting a destructive
device causing bodily injury. (Ibid.) Thompson appealed, and
this court affirmed the convictions, but directed the trial court to
resentence Thompson on counts 1 and 3. (Id. at pp. 1974-1975.)
2 A Molotov cocktail “is a bottle filled with a flammable
liquid with a wick or rag which acts as a fuse to ignite [the]
device.” (People v. Townsend (2010) 182 Cal.App.4th 1151, 1155.)
“The device is named after Vyacheslav Mikhaylovich Molotov
(1890-1986), a Soviet statesman.” (State v. Gauthier (2002)
73 Conn.App. 781, 787 [809 A.2d 1132, 1137].)
4
On remand the trial court sentenced Thompson to life without
the possibility of parole for exploding or igniting a destructive
device causing death and stayed execution of the sentence for
first degree murder. This court affirmed. (People v.
Thompson (1994) 24 Cal.App.4th 299, 303 (Thompson II).)
B. This Court Grants Thompson’s Request on Habeas
To Vacate His Conviction for First Degree Murder; the
People Accept a Conviction for Second Degree Murder
Thompson filed a petition for writ of habeas corpus
following the Supreme Court’s decision in People v. Chiu (2014)
59 Cal.4th 155, which held an aider and abettor may not be
convicted of first degree murder under the natural and probable
consequences doctrine. (See In re Thompson (Sept. 5, 2017,
B270387) [nonpub. opn.] [2017 WL 3866785] (Thompson III).)
Thompson argued that his convictions for first degree murder
and exploding or igniting a destructive device causing death and
bodily injury had to be vacated because the trial court
erroneously instructed the jurors that they could find him guilty
of those crimes under the natural and probable consequences
doctrine and the record did not establish beyond a reasonable
doubt his convictions were based on a legally valid theory.
We granted the petition on Thompson’s conviction for first
degree murder, but denied it on the convictions for exploding or
igniting a destructive device causing death and bodily injury. We
stated the People could accept a reduction of the conviction for
first degree murder to second degree murder or retry Thompson
for first degree murder under a legally valid theory. (Thompson
III, supra.) The People elected to accept a reduction of the
murder conviction, and the trial court sentenced Thompson to
terms of 15 years to life for second degree murder and a
5
concurrent term of seven years for exploding or igniting a
destructive device causing bodily injury. The court also stayed
execution of sentence on Thompson’s conviction for exploding or
igniting a destructive device causing death.
C. The Superior Court Denies Thompson’s Petition
Under Section 1172.6
In January 2019 Thompson filed a petition for resentencing
under section 1172.6. Thompson alleged that he was convicted of
first degree murder under a theory of felony murder or murder
under the natural and probable consequences doctrine and that
he could not now be convicted of murder because of changes to
sections 188 and 189. The trial court summarily denied the
petition. Thompson appealed from the order denying his petition,
and we reversed the order and directed the superior court to
appoint counsel for Thompson and to comply with the procedure
under section 1172.6. (People v. Thompson (Jan. 13, 2020,
B296039) [nonpub. opn.] [2020 WL 131866, at p. 2].)
The superior court appointed counsel for Thompson and set
an evidentiary hearing. The People argued Thompson was not
eligible for relief under section 1172.6 because Thompson could
still be convicted of murder under sections 188 and 189. The
People argued Thompson acted with implied malice in directly
aiding and abetting Dionsa’s murder, was a major participant in
the arson that caused Dionsa’s death, and acted with reckless
indifference to life. The prosecutor asked the court to mark as
Exhibit 1 a compact disc previously provided to counsel for
Thompson, which purportedly contained “the entire reporter’s
transcripts, as well as the entire clerk’s transcripts,” from
Thompson’s trial. Counsel for Thompson acknowledged receiving
the files from the People, and the court received the files into
evidence. It turned out, however, the compact disc contained only
6
part of the preliminary hearing testimony, including Detective
Callian’s testimony, and this court’s opinions in Thompson I and
Thompson II.
After supplemental briefing and a hearing, the superior
court denied Thompson’s petition and found he could be convicted
of murder under sections 188 and 189 as amended. Regarding
direct aiding and abetting murder under section 188, the court
found Thompson acted with implied malice because he shared a
“common purpose” with the other two men “to firebomb this
house at about 11:30 at night,” drove Snead and Nixon to collect
the ingredients and materials for the bombs, drove Snead and
Nixon to Lee’s house, and parked around the corner because he
knew Snead and Nixon planned to firebomb it. The court said
Thompson’s conduct and knowledge of the planned attack
satisfied the physical component of implied malice because
“anybody 10 years old or older would know if you throw a
firebomb in the house, somebody is going to get injured.” The
court found the evidence satisfied the mental component of
implied malice because, “when you throw a firebomb in anybody’s
house, in anybody’s kind of close spaces, mentally you understand
that that’s dangerous to the particular person’s life.” The court
stated that the time of the attack—late at night when “most
people are at home and in their beds sleeping”—further
suggested “this is a little bit more serious than the fact that you
just happened to be at the wrong place at the wrong time with
some of your buddies.”
Regarding liability for felony murder under section 189, the
court found Thompson was a major participant in the underlying
arson and acted with reckless indifference to human life.
Specifically, the court found Thompson was present during the
planning stages, knowingly agreed to participate, helped obtain
the supplies for the firebombs, was aware of the danger posed by
7
“throwing a Molotov cocktail in somebody’s house . . . at 11:30 at
night,” never attempted to prevent Snead and Nixon from
throwing the firebombs, and never took any action to assist the
victims or otherwise minimize the risk created by his and his
companions’ actions. Thompson timely appealed from the order
denying his petition.
DISCUSSION
Thompson argues substantial evidence did not support the
superior court’s finding he could be convicted under section 188
for directly aiding and abetting murder. Thompson also argues
that his acquittal on the count for arson precluded the superior
court from finding he was a major participant under section 189
and that substantial evidence did not support the court’s finding
Thompson had a reckless indifference to life. Because we
conclude substantial evidence supported the court’s finding
Thompson could be convicted of murder as a direct aider and
abettor, we do not consider Thompson’s other arguments.3
3 Thompson does not contend the superior court erred in
relying “on the factual summary as stated in the prior appellate
decision affirming the conviction.” (Compare People v. Flores
(2022) 76 Cal.App.5th 974, 988 [superior court erred at the prima
facie stage in relying on an appellate opinion that was not part of
the record of conviction to find the petitioner was ineligible for
relief] with People v. Harris (2021) 60 Cal.App.5th 939, 953-954
[in postconviction proceedings including under section 1172.6,
“statements from prior appellate opinions are admissible as
reliable hearsay even if they would not be admissible at trial”];
see also § 1172.6, subd. (d)(3) [superior court may rely on a prior
appellate opinion for “the procedural history of the case”].)
Thompson states that any error by the superior court in relying
8
A. Senate Bill No. 1437 and the Section 1172.6 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) substantially modified the law governing accomplice
liability for murder, eliminating the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843) and
significantly narrowing the felony-murder exception to the malice
requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see
People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis
(2021) 11 Cal.5th 952, 957). As amended by Senate Bill No. 1437,
section 188, subdivision (a)(3), now prohibits imputing malice
based solely on an individual’s participation in a crime and
requires proof of malice to convict a principal of murder, except
under the revised felony-murder rule in section 189,
subdivision (e). The latter provision requires the People to prove
specific facts relating to the defendant’s individual culpability:
The defendant was the actual killer (§ 189, subd. (e)(1)); the
defendant, though not the actual killer, with the intent to kill
assisted in the commission of the murder (§ 189, subd. (e)(2)); or
the defendant was a major participant in a felony listed in section
189, subdivision (a), and acted with reckless indifference to
human life, “as described in subdivision (d) of Section 190.2,” the
felony-murder special-circumstance provision. (Strong, at p. 708;
see Gentile, at pp. 842-843.)
Senate Bill No. 1437 also authorized, through section
1172.6, an individual convicted of felony murder or murder based
on the facts in our prior opinion “could only be harmless because
the preliminary hearing testimony, which is admissible, was
consistent with the facts summarized” in our opinion.
9
on the natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not now be convicted of
murder because of the changes in Senate Bill No. 1437 to the
definitions of the crime. (See People v. Strong, supra, 13 Cal.5th
at p. 708; People v. Lewis, supra, 11 Cal.5th at p. 957; People v.
Gentile, supra, 10 Cal.5th at p. 843.) As the Supreme Court
clarified in Lewis, and as amendments by Senate Bill No. 775
made explicit, if a section 1172.6 petition contains all the
required information, the court must appoint counsel to represent
the petitioner if requested. (Lewis, at pp. 962-963; see § 1172.6,
subds. (b)(1)(A), (3).) The prosecutor must then file a response to
the petition, the petitioner may file a reply, and the court must
hold a hearing to determine whether the petitioner has made a
prima facie showing he or she is entitled to relief. (§ 1172.6,
subd. (c).)
Where, as here, the petitioner has made the requisite
prima facie showing he or she is entitled to relief under section
1172.6, the court must issue an order to show cause and hold an
evidentiary hearing to determine whether to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (§ 1172.6, subd. (d)(1).) At that hearing the court may
consider evidence “previously admitted at any prior hearing or
trial that is admissible under current law,” including witness
testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the
prosecutor may also offer new or additional evidence. (Ibid.; see
Gentile, supra, 10 Cal.5th at pp. 853-854.)
On appeal from an order denying a petition under section
1172.6, we review the trial court’s factual findings for substantial
evidence. (People v. Richardson (2022) 79 Cal.App.5th 1085,
10
1090; People v. Ramirez (2021) 71 Cal.App.5th 970, 985.) We
“‘“examine the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value that would support a rational trier of fact in finding
[the defendant guilty] beyond a reasonable doubt.’” [Citation.]
Our job on review is different from the trial judge’s job in
deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt.”
(People v. Clements (2022) 75 Cal.App.5th 276, 298; see
Richardson, at p. 1090.) “‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.’” (People v. Brooks (2017) 3 Cal.5th 1, 57; see
People v. Nieber (2022) 82 Cal.App.5th 458, 476.)
B. Substantial Evidence Supported the Superior Court’s
Finding Beyond a Reasonable Doubt Thompson Was
Ineligible for Relief Under Section 1172.6
1. Aiding and Abetting Implied Malice Murder
“A person who aids and abets the commission of a crime is
culpable as a principal in that crime.” (Gentile, supra, 10 Cal.5th
at p. 843; see People v. Powell (2021) 63 Cal.App.5th 689, 710.)
“[U]nder direct aiding and abetting principles, an accomplice is
guilty of an offense perpetrated by another if the accomplice aids
the commission of that offense with ‘knowledge of the direct
11
perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’” (Gentile, at p. 843.) Thus, a
direct aider and abettor’s guilt is “‘based on a combination of the
direct perpetrator’s acts and the aider and abettor’s own acts and
own mental state.’” (Powell, at p. 710; see People v. McCoy (2001)
25 Cal.4th 1111, 1117.) An “‘aider and abettor’s mental state
must be at least that required of the direct perpetrator,’ and
when the crime is murder, the ‘aider and abettor must know and
share the murderous intent of the actual perpetrator.’” (People v.
Maciel (2013) 57 Cal.4th 482, 518; see People v. Offley (2020)
48 Cal.App.5th 588, 596.)
“Murder, whether in the first or second degree, requires
malice aforethought. (§ 187.) Malice can be express or implied.
It is express when there is a manifest intent to kill (§ 188,
subd. (a)(1)); it is implied if someone kills with ‘no considerable
provocation . . . or when the circumstances attending the killing
show an abandoned and malignant heart’ (§ 188, subd. (a)(2)).
When a person directly perpetrates a killing, it is the perpetrator
who must possess such malice. [Citations.] Similarly, when a
person directly aids and abets a murder, the aider and abettor
must possess malice aforethought.” (Gentile, supra, 10 Cal.5th at
p. 844.) “For implied malice, the intent requirement is satisfied
by proof that the actual perpetrator ‘“knows that his conduct
endangers the life of another and . . . acts with conscious
disregard for life.”’ [Citation.] Therefore, notwithstanding
Senate Bill 1437’s elimination of natural and probable
consequences liability for second degree murder, an aider and
abettor who does not expressly intend to aid a killing can still be
convicted of second degree murder if the person knows that his or
12
her conduct endangers the life of another and acts with conscious
disregard for life.” (Gentile, at p. 850.)
Implied malice has “‘both a physical and a mental
component. The physical component is satisfied by the
performance of “an act, the natural consequences of which are
dangerous to life.”’” (People v. Chun (2009) 45 Cal.4th 1172,
1181.) Thus, to be culpable as a direct aider and abettor of
implied malice murder, the accomplice “‘must, by words or
conduct, aid the commission of the life-endangering act, not the
result of that act.’” (People v. Superior Court (Valenzuela) (2021)
73 Cal.App.5th 485, 501 (Valenzuela); accord, People v. Powell,
supra, 63 Cal.App.5th at p. 713; see People v. Glukhoy (2022)
77 Cal.App.5th 576, 588 [“the aider and abettor’s actus reus
‘includes whatever acts constitute aiding the commission of the
life endangering act’”], review granted July 27, 2022, S274792.)
The mental component of implied malice murder requires that
the defendant “‘“knows that his conduct endangers the life of
another and . . . acts with a conscious disregard for life.”’” (Chun,
at p. 1181.) “‘The aider and abettor of implied malice murder
need not intend the commission of the crime of murder. Rather
. . . he or she need only intend the commission of the perpetrator’s
act, the natural and probable consequences of which are
dangerous to human life, intentionally aid in the commission of
that act and do so with conscious disregard for human life.’”
(Valenzuela, at p. 501; see Powell, at p. 714.) “The requisite
intent is a subjective one—the defendant must have ‘actually
appreciated the risk involved.’” (Valenzuela, at p. 501.) “‘In
short, implied malice [murder] requires a defendant’s awareness
of engaging in conduct that endangers the life of another.’”
13
(People v. Cravens (2012) 53 Cal.4th 500, 507; accord, People v.
Palomar (2020) 44 Cal.App.5th 969, 974.)
“Implied malice can exist even if the act results in an
accidental death. [Citation.] And like all other elements of a
crime, implied malice may be proven by circumstantial evidence.”
(Valenzuela, supra, 73 Cal.App.5th at p. 502.) Indeed, the “‘very
nature of implied malice . . . invites consideration of the
circumstances preceding the fatal act.’” (Ibid.; see People v.
Palomar, supra, 44 Cal.App.5th at p. 977 [mental component of
implied malice murder is ordinarily proven by the circumstances
leading to the ultimate deadly result].) “Among the
circumstances courts have found relevant in determining
whether malice may be inferred are the victim’s vulnerability, the
number of assailants, the ferocity and duration of the attack, and
the unusualness or unexpectedness of the victim’s death.”
(Valenzuela, at p. 502.)
2. Substantial Evidence Supported the Superior
Court’s Finding Thompson Acted with Implied
Malice
Thompson argues substantial evidence did not support the
physical or mental component required to convict him of aiding
and abetting implied malice murder. First, Thompson argues
there was insufficient evidence he aided the commission of a life-
endangering act because Molotov cocktails are not as life-
endangering as pipe bombs. But even if Thompson’s premise is
correct (which is doubtful), it does not follow that throwing
Molotov cocktails at a house late at night is not life-endangering.
Indeed, a “‘Molotov cocktail has no use other than as a weapon’”
of destruction. (People v. Townsend (2010) 182 Cal.App.4th 1151,
14
1155; see United States v. Cruz (2d Cir. 1974) 492 F.2d 217, 219
[Molotov cocktails “are objectively destructive” and “have no use
besides destruction”]; United States v. Ross (5th Cir. 1972) 458
F.2d 1144, 1145 [Molotov cocktails are “not suited for some
. . . innocent end”].) A Molotov cocktail is a type of bomb that is
“‘“inherently dangerous”’” because it may wreak enormous havoc
on persons and property and its “‘victims are often unintended
sufferers.’” (Townsend, at p. 1155; see People v. Morse (1992)
2 Cal.App.4th 620, 646.) As we stated in Thompson II, Molotov
cocktails “can inflict indiscriminate and multiple deaths,” and the
nature of the crime committed here was “extraordinarily
dangerous.” (Thompson II, supra, 24 Cal.App.4th at pp. 307,
309.) Substantial evidence supported the superior court’s finding
Thompson aided the commission of a life-endangering act.
Second, Thompson argues there was insufficient evidence
he acted with conscious disregard for human life. Thompson
contends that he did not know Snead and Nixon intended to
throw the Molotov cocktails “into the house” and that, in part
because he was only 18 years old at the time, he did not
appreciate the risk created by their conduct. And he argues the
superior court erred in inferring Thompson “knew Snead and
Nixon intended to use the gas-filled bottles the way they did.”
Substantial evidence, however, supported that very inference.
Thompson knew the plan was to “cocktail” Lee’s house and
helped Snead and Nixon obtain the supplies they needed to carry
out that plan, even making an extra stop for matches. And as the
superior court stated, Thompson’s act of parking the car around
the corner from Lee’s house further supported the inference
Thompson knew Snead and Nixon intended to throw the Molotov
cocktails at Lee’s house. That Thompson might not have known
15
one or both of the firebombs would go through a window and into
the house, as opposed to landing on the front porch or somewhere
else next to the house, did not make throwing an ignited bottle of
gasoline at the house any less dangerous to human life. (See
Mello v. DiPaulo (1st Cir. 2002) 295 F.3d 137, 140 [Molotov
cocktail thrown at approximately 4:30 a.m. at a porch in front of
an apartment building caused a fire that killed two residents].)
Circumstantial evidence also supported the superior court’s
finding Thompson appreciated the risk caused by Snead’s and
Nixon’s acts. (See People v. Cravens, supra, 53 Cal.4th at p. 511
[trier of fact “was entitled to infer [the defendant’s] subjective
awareness that his conduct endangered [the victim’s] life from
the circumstances of the attack alone, the natural consequences
of which were dangerous to human life”]; People v. Palomar,
supra, 44 Cal.App.5th at p. 978 [same].) As the superior court
observed, the attack occurred near midnight, when people are
generally home and often asleep, which made Lee and anyone
else in the house vulnerable. (See Cravens, at p. 509 [victim’s
vulnerability to attack supported finding of implied malice];
Valenzuela, supra, 73 Cal.App.5th at p. 502 [same].) And despite
knowing Snead and Nixon firebombed Lee’s home, Thompson did
not seek assistance for the victims after Snead and Nixon
returned to Thompson’s car. (See Cravens, at p. 511 [defendant’s
failure to ascertain the victim’s condition or to secure emergency
assistance supported the mental component of implied malice].)
Thompson also had to know the Molotov cocktails Snead
and Nixon threw would cause destruction—that was their only
purpose—including injury and death. (See People v. Townsend,
supra, 182 Cal.App.4th at pp. 1155-1156 [“courts have declared
that unlawfully possessing bombs [like Molotov cocktails] in
16
neighborhoods or communities ‘inherently involves a high
probability of death’”]; Thompson II, supra, 24 Cal.App.4th at
p. 308 [throwing Molotov cocktails is not “a criminal enterprise
where violence and death [are] unexpected”]; see also United
States v. Honeycutt (11th Cir. 1993) 8 F.3d 785, 787 [“[i]t is
difficult to imagine a clearer illustration of the knowing creation
of a substantial risk of death or serious bodily injury” than
throwing “a Molotov cocktail at a structure” known to be
occupied]; United States v. Karlic (9th Cir. 1993) 997 F.2d 564,
570 [bombing bank depository boxes in the early morning hours
created a substantial risk of death or serious bodily injury
because “neighboring residents were practically certain to be
present” in an adjacent apartment complex].) Thompson was
over 18 when the crime occurred. There was no evidence he had
cognitive difficulties or would not have understood what is
common knowledge: Uncontrolled fire is inherently dangerous to
human life. While a defendant’s age may influence his or her
awareness “‘of particular dangers posed by the nature of the
crime’” (People v. Harris (2021) 60 Cal.App.5th 939, 960),
Thompson’s age alone did not undermine the superior court’s
finding beyond a reasonable doubt that Thompson knew and
appreciated the risk that firebombing Lee’s house endangered the
life of others.
17
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
18