Can a defendant who shot and killed an unarmed, unsuspecting, unsuspecting victim argue that the victim was not particularly vulnerable because he was a healthy police officer with access to a gun?

As for the contention that Porcella was much larger than defendant, the fact that defendant procured a gun and concealed it from an unarmed, unsuspecting victim obviously negates the point. In People v. Eades (1979) 95 Cal.App.3d 688, the court

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faced a somewhat similar contention in that the defendant there argued that a healthy police officer with access to weapons could not be considered particularly vulnerable. (Id. at p. 690.) The appellate court disagreed under circumstances in which the defendant, "without warning or any apparent motivation or provocation . . . from the rear seat of a moving vehicle, shot the driver victim twice at point-blank range." (Ibid.) In response to the contention that the police officer victim was not particularly vulnerable, the court stated: "The devious and sudden manner in which defendant shot and killed the victim rendered the availability of weapons and the victim's training irrelevant. The police officer was as open to attack as any other person would have been, regardless of age, physical stature, or mental capabilities." (Ibid.) Likewise, in this case the manner in which defendant confronted Porcella rendered any size advantage he might have had irrelevant. He was not only unarmed but also apparently unaware that defendant had concealed a loaded weapon as he returned to the cottage. (Cf. People v. Nevill (1985) 167 Cal.App.3d 198, 205 [victim was particularly vulnerable because she was unarmed, unsuspecting, and physically and mentally abused by defendant who shot her in the bedroom of her own home].)