P. v. Audinette CA2/2
Defendants and appellants Brandon Dion Audinette (Audinette) and Xavier Gage Gaither (Gaither) appealed from judgments entered after they were convicted of conspiracy to murder, attempted murder, and shooting at an inhabited dwelling. Defendants asserted 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 argued that his sentence violated the Eighth Amendment to the United States Constitution, as well as article I, section 17, of the California Constitution, and he asked that we correct clerical error in the abstract of judgment. In our original opinion, filed March 29, 2017, we agreed that the jury instruction regarding implied malice murder was given in error, but found beyond a reasonable doubt that the error was harmless. We ordered the correction of clerical errors in both defendants’ abstracts of judgment.
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