Pizano v. Superior Court

Opinion

CLARK, J.

The question presented is whether an armed* robber—using his victim as a shield to effect escape—is guilty of murder under an implied malice theory when a third party—unaware of the victim’s presence—accidentally kills the victim while trying to prevent the robber’s escape.

Statements made by this court in People v. Gilbert (1965) 63 Cal.2d 690 [47 Cal.Rptr. 909, 408 P.2d 365] suggest that the robber is not guilty of murder because the third party, not even realizing that the victim is present, is not responding to the robber’s malicious conduct in using the victim as a shield.…