P. v. Audinette CA2/2
Defendants and appellants Brandon Dion Audinette (Audinette) and Xavier Gage Gaither (Gaither) appeal from judgments entered after they were convicted of conspiracy to murder, attempted murder, and shooting at an inhabited dwelling. They contend that the trial court erred in failing to give a sua sponte jury instruction on heat of passion, and that the court’s conspiracy instructions erroneously included a definition of implied-malice murder. Gaither further contends that his sentence violated the Eighth Amendment to the United States Constitution, as well as article I, section 17, of the California Constitution. Gaither also asks that we correct clerical error in the abstract of judgment. We agree that the jury instruction regarding implied-malice murder was given in error, but find beyond a reasonable doubt that the error was harmless. We correct clerical errors in both defendants’ abstracts of judgment, but finding no merit to defendants’ remaining contentions, we affirm
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