Brief Bank # B-789 (Re: FORECITE F 4.30 n6 [Unconsciousness: Improper To Instruct On Unconsciousness In Terms Of General Criminal Intent].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________________/
Excerpt From
APPELLANT’S OPENING BRIEF
IV. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT INVOLUNTARY MANSLAUGHTER PREDICATED UPON AN UNCONSCIOUSNESS DEFENSE IS A “GENERAL INTENT” CRIME; THIS MISINSTRUCTION ON A CRUCIAL ELEMENT OF THE LESSER INCLUDED OFFENSE SOUGHT BY THE DEFENSE REQUIRES REVERSAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.
A. Procedural Background.
The trial court gave the following instruction under CALJIC 3.30 with respect to the lesser included offense of involuntary manslaughter:
“In the crime of 192(b), involuntary manslaughter, there must exist a union or joint operation of act or conduct and general criminal intent. [¶] To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful.” (RT 494, emphasis added)
The court later advised the jury this about the crime of involuntary manslaughter:
“If you find that a defendant while unconscious as a result of voluntary intoxication killed another human being without intent to kill and without malice aforethought, the crime is involuntary manslaughter. [¶] When a person voluntarily induces his own intoxication to the point of unconsciousness, he assumes the risk that while unconscious he will commit acts inherently dangerous to human life or safety. Under such circumstances, the law implies criminal negligence.” (RT 500, emphasis added.)
B. Instructional Error.
Appellant contends that the trial court erred by instructing the jury that involuntary manslaughter was a general intent crime. [Footnote 1] Intentionality is not an element of involuntary manslaughter based on unconsciousness; the mental state for this crime is criminal negligence. (People v. Graham (1969) 71 Cal.2d 303, 316-317; People v. Tidwell (1970) 3 Cal.3d 82, 86; People v. Oliver (1989) 210 Cal.App.3d 138, 146-150.) It is clear that for involuntary manslaughter, the Legislature has chosen the standard of criminal negligence as a substitute for intentionality. (See People v. Lara (1996) 44 Cal.App.4th 102, 109, fn. 2, citing 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 113, pp. 133-134.) A negligence standard is inconsistent with any kind of intentionality. (See, e.g., People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540, defining “gross negligence.”)
In certain situations, a general intent instruction could be said to be applicable to involuntary manslaughter. For example, in the “garden variety” involuntary manslaughter, where a defendant shoots a gun in a grossly negligent manner and unintentionally kills another person, an instruction on general intent is required with respect to the shooting of the gun. (See People v. Beach (1983) 147 Cal.App.3d 612, 626-627 [error in failing to instruct on general intent for involuntary manslaughter found harmless because of undisputed evidence that defendant intended to fire gun].) But such an instruction is entirely inconsistent with an unconsciousness defense, where the required mental state is criminal negligence at the time the defendant became voluntarily intoxicated, and there can be no conceivable proof of intentionality at the time the unconscious defendant kills the victim.
Nor is such an instruction required by law. Penal Code section 20 states that every crime must have a “joint operation of act and intent or criminal negligence.” (Pen. Code § 20, emphasis added.) What was required here was an instruction on the joint operation of act and criminal negligence, with an explanation to the jury that the criminal negligence in an unconsciousness setting takes place at the time of the voluntary intoxication. [Footnote 2] Thus, the trial court erred in instructing on general intent.
C. The Requirement of Reversal.
Appellant contends that this error violated his federal constitutional rights. As discussed in Part III-C-1, erroneous and contradictory instructions defining the elements of a crime or lessers thereto violate the due process clause. (People v. Lee, supra, 43 Cal.3d at pp. 673-674.) The general intent instruction violated appellant’s Fourteenth Amendment right to due process of law because it constituted a misleading and confusing instruction under color of state law which was “likely to cause an imprecise, arbitrary or insupportable finding of guilt.” (Baldwin v. Blackburn , supra, 653 F2d at p. 949.)
Appellant submits that reversal is required under either the federal or state constitutional standard. The danger of the improper general intent instruction in the instant case was grave. The jury, instructed on a requirement of “general intent” for involuntary manslaughter in the context of an unconsciousness defense to murder, could only reasonably conclude that Mr. Doe did not commit involuntary manslaughter because of the impossibility of the general intent requirement, i.e., that he intend the act causing the crime. Such an intent was entirely inconsistent with the defense to the murder charge which appellant put before the jury. On the facts of the instant case, if Mr. Doe intended the act of shooting the victim in the head, he had to be guilty of murder. On the other hand, if he did not intend this act because he was unconscious at the time of the shooting—which was precisely the defense theory of the case—under the terms of the general intent instruction given to them, the jury could not convict him of involuntary manslaughter, because he lacked the requisite intent to commit the act causing the crime. Thus, the general intent instruction left the jury with an “unwarranted all or nothing choice” between murder and acquittal.
The impact of the error is akin to that discussed in People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540, where the court reversed a conviction for vehicle theft based on an erroneously narrow definition of the “taking” required for the lesser crime of joyriding. In Alonzo, the trial court’s improper narrowing of the definition of the lesser crime confused the jury, and rendered improbable any verdict on the lesser crime. (Id.) In the instant case, the court’s improper instruction requiring proof of general criminal intent for the lesser crime of involuntary manslaughter rendered a verdict on this lesser crime improbable, requiring reversal of the conviction on the greater crime of murder.
Put another way, the instructional error was not harmless beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. at p. 24), and it is reasonable probable that a result more favorable to appellant would have occurred had the court not given the improper and confusing instruction on general intent in connection with the involuntary manslaughter instructions. (People v. Watson, supra, 46 Cal.2d at p. 826.)
FOOTNOTES
Footnote 1 No objection was raised to this improper instruction. However, the error is reviewable on appeal both because of the trial court’s duty to properly instruct the jury sua sponte on the general principles of law relevant to the issues raised by the evidence (People v. St. Martin (1970) 1 Cal.3d 524, 531), and because the substantial rights of the defendant were affected by the improper instruction given. (Penal Code section 1259; see People v. Harris (1981) 28 Cal.3d 935, 956.)
Footnote 2 Such an instruction was probably unnecessary, since CALJIC 8.47 advised the jury that in the situation of a killing by a person unconscious because of voluntary intoxication, “the law implies criminal negligence.” (CT 114)
