Brief Bank # B-963 (Re: F 8.66 n15 [Attempted Murder: Attempted Voluntary Manslaughter As Lesser Included].)
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Date of Brief: October, 2002
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
_____________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE, RON ROE, AND MIKE MOE,
Defendants and Appellants.
_____________________________________/
_________________________________________________________________
On Appeal from the Superior Court of the State of California
in and for the County of Fresno
Honorable Gene Gomes, Judge
_________________________________________________________________
APPELLANT’S OPENING BRIEF
RICHARD L. RUBIN
Attorney at Law
4200 Park Blvd., Ste. 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for
Defendant/Appellant
JOHN DOE
II. THE TRIAL COURT COMMITTED ERROR IN FAILING TO INSTRUCT THE JURY ON ATTEMPTED VOLUNTARY MANSLAUGHTER AS A LESSER OFFENSE OF ATTEMPTED MURDER WITH RESPECT TO COUNT 2
A. The Trial Court Erred in Failing to Provide Instructions on Attempted Voluntary Manslaughter
Appellant asserts that the trial court had a sua sponte duty to instruct on attempted voluntary manslaughter (§ 192, subd. (a) & § 664) as a lesser included offense to the charge of attempted murder of “an CMB gang member/associate” as alleged in count 2. (3 CT 617.) “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (People v. Breverman, supra, 19 Cal.4th at 162.) The failure to instruct on necessarily included offenses violates a defendant’s right under the Fifth, Sixth and Fourteenth Amendments to have the jury determine all material issues presented by the evidence. (Sullivan v. Louisiana, supra, 508 U.S. at 277-278; In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068].) [Footnote 1]
The matter of lesser included offenses was recently addressed by the California Supreme Court in People v. Lopez (1998) 19 Cal.4th 282, which stated:
A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. (People v. Wickersham (1982) 32 Cal.3d 307, 323 [], . . . .) This sua sponte obligation extends to lesser included offenses if the evidence “raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.]” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 [] . . . .) As we stated recently, “a criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser. [Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 871 [] . . . .) [¶.] The requirement that courts give sua sponte instructions on lesser included offenses “is based on the defendant’s constitutional right to have the jury determine every material issue presented by the evidence. [Citations.]” (People v. Ramkeesoon, supra, 39 Cal.3d at p. 351.)
(People v. Lopez, supra, 19 Cal.4th at 287-288 [original emphasis omitted].)
Attempted voluntary manslaughter is a lesser included offense of voluntary murder. Voluntary manslaughter applies to “[a] defendant . . . who commits an intentional and unlawful killing but who lacks malice.” (People v. Breverman, supra, 19 Cal.4th at 153; People v. Barton, supra, 12 Cal.4th at 199.) Malice may be negated in two ways: “either when the defendant acts in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a)), or when the defendant kills in ‘unreasonable self-defense’ — the unreasonable but good faith belief in having to act in self-defense [citations].” (People v. Breverman, supra, 19 Cal.4th at 153-154; People v. Barton, supra, 12 Cal.4th at 199.) “Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide, voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder.” (People v. Breverman, supra, 19 Cal.4th at 154 [emphasis and citations omitted].) It logically follows that attempted voluntary manslaughter is a lesser included offense to attempted murder. (See People v. Lopez, supra, 19 Cal.4th at 288-289 [setting forth test to determine lesser included offense].)
There is no question that California recognizes attempted voluntary manslaughter as a defined criminal offense which involves a mental state corresponding to heat of passion or imperfect self-defense. (People v. Lewis (1993) 21 Cal.App.4th 243, 251; People v. Van Ronk (1985) 171 Cal.App.3d 818, 824.) The Lewis court explained:
Manslaughter and attempted man-slaughter are separate offenses. Manslaughter is the unlawful killing of a human being without malice. (§ 192.) Attempted manslaughter is a direct but ineffectual act, committed without malice, but intended to kill a human being. (§ 21a.) In other words, attempted manslaughter is an assault; i.e., an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (See § 240.) Manslaughter is a homicide; attempted manslaughter an aggravated assault.
(People v. Lewis, supra, 21 Cal.App.4th at 251 [case citation and fn. omitted].)
Instructions on attempted voluntary manslaughter were clearly supported by portions of the evidence presented at trial. In appellant Doe’s tape-recorded statement to the police, which was introduced into evidence by the prosecution (19 RT 2334-2335; 20 RT 2339-2341), Doe stated that he had fired his gun only after Moe had pulled his gun and fired first. (3 CT 791-793, 798-799.) Prosecution witness Mr. H (“Poker”) likewise testified that appellant fired at Moe only after Moe had first shot at the ABZ members. (18 RT 1975-1978.) The district attorney conceded in her closing argument that due to the conflicting state of the evidence it might not be possible for the jurors to determine “who pulled the gun first, who racked it first, who fired first” or “how many seconds or milliseconds separated all of those activities.” (23 RT 3187.)
CALJIC No. 5.17, defining imperfect-self-defense voluntary manslaughter, states that “[a] person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury” does not harbor malice and may properly be convicted of voluntary manslaughter, rather than murder. In the present case the jurors could reasonably have concluded that appellant shot at Moe while possessing this mental state. Furthermore, the jury may have found itself unable to determine beyond a reasonable doubt which of the parties involved in the gunfight fired first.
Based upon the state of the evidence presented at trial, the court below instructed the jury upon perfect and imperfect self-defense, heat-of-passion and voluntary manslaughter, by way of CALJIC Nos. 5.12, 5.15, 5.17, 5.50, 5.54, 5.55, 5.56, 8.37, 8.40, 8.42, 8.43, 8.45, 8.46, 8.50 and 8.72. (4 CT 1085-1089, 1094-1106.) Thus, the trial court implicitly found that there was sufficient pertinent evidence of heat of passion or imperfect self-defense to merit the jury’s being given the option of finding appellant guilty of voluntary manslaughter based upon factual theories with respect to the count 1 murder charge.
In analogous contexts reviewing courts have held that when a trial court evaluates the credibility of the witnesses, and determines that there is an evidentiary foundation for a certain instruction, the trial court’s underlying factual evaluation is entitled to great weight on appeal. (See e.g., People v. Castillo (1969) 70 Cal.2d 264, 270; People v. McKelvy (1987) 194 Cal.App.3d 694, 705; People v. Page (1980) 104 Cal.App.3d 569, 575.) Accordingly, while respondent is entitled to a determination on appeal as to whether the evidence was sufficient to merit certain instructions (People v. Frierson (1979) 25 Cal.3d 142, 157), the trial court’s decision to instruct upon manslaughter based upon imperfect self-defense and heat of passion establishes a strong presumption that the evidence was sufficient to support jury findings as to those factual matters. (See e.g., People v. Castillo, supra, 70 Cal.2d at 270; People v. Page, supra, 104 Cal.App.3d at 575; People v. Stevenson (1978) 79 Cal.App.3d 976, 985.)
In the present case, the trial court properly found the evidence of imperfect self-defense and provocation sufficient to warrant instructing the jury on voluntary manslaughter with respect to count 1. It therefore follows that this state of the evidence also merited instructions on attempted voluntary manslaughter with respect to count 2. Thus, giving proper deference to the trial court’s own implicit findings regarding the state of the evidence, while resolving all “[d]oubts as to the sufficiency of the evidence to warrant instructions . . . in favor of the accused” (People v. Flannel, supra, 25 Cal.3d at 685), there was sufficient evidence to warrant instructing the jury on attempted voluntary manslaughter as a lesser included offense to attempted murder as charged in count 2.
Moreover, appellant possessed a due process right to have the jury determine any issue which negated a mental element of a crime at-issue. (People v. Bobo (1990) 229 Cal.App.3d 1417, 1442-1443.) Accordingly, the trial court erred in failing to provide the jury with the option of convicting appellant of attempted voluntary manslaughter with respect to count 2.
B. Prejudice
The California Supreme Court has recently indicated that the appropriate standard of review for error in failing to instruct upon a lesser included offense is that of People v. Watson (1956) 46 Cal.2d 818, necessitating reversal where an examination of the entire record establishes a reasonable probability that such error affected the verdict. (People v. Breverman, supra, 19 Cal.4th at 178.) However, appellant would assert that because this error deprived appellant of his due process rights under the Fifth, Sixth and Fourteenth Amendments of the federal constitution to have the jury determine all factual issues relating to a charged offense (Sullivan v. Louisiana, supra, 508 U.S. at 277-278; In re Winship, supra, 397 U.S. at 364) the present error should be reviewed under the Chapman [Footnote 2] harmless error standard and reversal is required unless this error was “harmless beyond a reasonable doubt.” (Sullivan v. Louisiana, supra, 508 U.S. at 278-279; Delaware v. Van Arsdall, supra, 475 U.S. at 684.)
In any event, whether this error is evaluated under Watson or Chapman, reversal is required. As set forth at Argument I.B. above, this was a close case in consideration of the jury’s behavior and the state of the evidence. Moreover, there was substantial evidence that appellant had acted in self-defense with respect to counts 1, 2, 4 and 5. If the jurors rejected appellant’s defense of perfect self-defense as to count 2, the jurors nonetheless could have concluded that appellant acted in the actual but unreasonable belief in the need to employ deadly force against Moe and, on that basis, convicted appellant of attempted manslaughter, rather than attempted murder.
Furthermore, no given jury instructions resolved the factual issue of whether appellant was guilty of attempted voluntary manslaughter rather than attempted murder. (See Yates v. Evatt (1991) 500 U.S. 391, 404-405 [114 L.Ed.2d 432, 111 S.Ct. 1884].)
Therefore, reversal of appellant’s conviction on count 2 is required.
OPENING BRIEF FOOTNOTES:
This was certainly not a case of “invited error” by defense counsel, which may constitute a limited exception to this issue being preserved for appeal. There was no discussion on the record regarding the trial court’s obligation to instruct on attempted voluntary manslaughter. (See People v. Barton, supra, 12 Cal.4th at 198; People v. Avalos, supra, 37 Cal.3d at 229.)
Chapman v. California, supra, 386 U.S. at 24.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
_____________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE, RON ROE, AND MIKE MOE,
Defendants and Appellants.
_____________________________________/
_________________________________________________________________
On Appeal from the Superior Court of the State of California
in and for the County of Fresno
Honorable Gene Gomes, Judge
_________________________________________________________________
APPELLANT’S REPLY BRIEF
RICHARD L. RUBIN
Attorney at Law
4200 Park Blvd., Ste. 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for
Defendant/Appellant
JOHN DOE
II. THE TRIAL COURT COMMITTED ERROR IN FAILING TO INSTRUCT THE JURY ON ATTEMPTED VOLUNTARY MANSLAUGHTER AS A LESSER OFFENSE OF ATTEMPTED MURDER WITH RESPECT TO COUNT 2
Respondent concedes “that appellant Doe was entitled to an instruction on attempted voluntary manslaughter in Count Two.” (RB 39.) However, respondent argues: 1) appropriate instructions were given (RB 39-40), and 2) alternatively, any erroneous omission was harmless (RB 40-44). Appellant responds below.
A. The Trial Court Erred in Failing to Provide Instructions on Attempted Voluntary Manslaughter
With respect to respondent’s assertion that the jury was correctly informed that attempted voluntary manslaughter was an available lesser offense as to count 2, respondent is clearly wrong. The jury was not provided with any verdict form for attempted voluntary manslaughter. Nor was the jury ever told that it had the option of convicting appellant of attempted voluntary manslaughter as a lesser included offense with respect to count 2, which charged appellant with the attempted murder of Moe. [Footnote 3] In fact, the court’s instructions never mentioned the crime of attempted voluntary manslaughter.
Respondent’s argument appears to be that the jurors should have been able to extrapolate, from instructions on voluntary manslaughter as a lesser charge to count 1 (murder of Mr. L) and instructions on attempted murder as charged in counts 2 and 3, that the crime of attempted voluntary manslaughter existed and represented a lesser included alternative to convicting appellant of attempted murder on count 2. (See RB 39-40.) Respondent’s argument defies logic.
The jurors were provided with specific instructions on certain lesser included offenses involving some charges. (See CT 1075, 1076, 1077, 1116.) They were also provided with blank verdict forms covering these lesser offenses. (See CT 1188, 1189, 1194, 1195.) Because the jurors were given instructions and verdict forms regarding particular lesser offenses and were not provided with any instructions or verdict forms concerning attempted voluntary manslaughter, the jurors would reasonably conclude that any such crime (if it existed) was of no concern to them.
In law and logic there is a principle that the specific overrides the general. (See, e.g., People v. Trimble (1993) 16 Cal.App.4th 1255, 1259 [“[s]pecial provisions control more than general provisions”].) There is a related principle: “Expressio unius est exclusio alterius. The expression of some things in a statute necessarily means the exclusion of other things not expressed.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 852.) Applying these two principles to the present issue, it is clear that when jurors are specifically instructed and provided with blank verdict forms as to certain defined lesser offenses, this “necessarily means the exclusion” of any unmentioned lesser offenses. Since the rules of statutory construction are rules of reason, there is every cause to think that a reasonable juror would reach the same conclusion.
In sum, the court below failed to instruct on attempted voluntary manslaughter as a lesser offense to the attempted murder charge set forth in count 2 and respondent does not dispute that such a failure constitutes error.
B. Prejudice
Respondent claims that the court’s error in failing to instruct on attempted voluntary manslaughter as a lesser offense to the charge of attempted murder of Moe was harmless. In so arguing, respondent primarily relies upon the jury’s finding that Doe was guilty of second degree murder as to count 1, the killing of Mr. L. (RB 40-41.) There are several flaws in respondent’s reasoning.
First, as discussed in the prior argument and Argument I. of Doe’s opening brief, the court failed to instruct the jury on the doctrine of transferred self-defense with respect to count 1. Therefore, the jury would have concluded that appellant was guilty of the murder of Mr. L without pausing to consider whether appellant was subjectively acting in self-defense against Moe. [Footnote 4]
Second, the jury’s second degree murder verdict on count 1 could have been based upon either a theory of express malice (i.e., an intentional killing coupled with transferred intent) or implied malice (i.e., an unintentional killing based upon the defendant’s reckless act) in accordance with the court’s CALJIC Nos. 8.11 and 8.65 instructions. (4 CT 1081-1082, 1093; 23 RT 3285-3286, 3289.) On the other hand, attempted murder as charged in count 2 requires express malice; there must be an intent to kill the victim along with the other required elements. (CALJIC No. 8.66, given at 4 CT 1108-1109; 23 RT 3295; accord People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; People v. Lashley (1991) 1 Cal.4th 938, 945, fn. 4.) The jury’s verdict on count 1 does not indicate whether its second degree murder verdict rested upon a finding of express or implied malice; certainly some jurors may have based their count 1 verdict on a theory of implied malice. Jurors who found appellant guilty of second degree murder on count 1 on a theory of implied malice would not necessarily, as a matter of logical consistency, be compelled to find that appellant acted with express malice for purposes of the count 2 attempted murder charge. Therefore, the court’s instructions and the jury’s verdict on count 1 fail to necessarily resolve the factual question of whether appellant was guilty of attempted manslaughter, rather than attempted murder, on count 2. (Yates v. Evatt, supra, 500 U.S. at 404-405; People v. Sedano (1974) 10 Cal.3d 703, 721.)
Portions of respondent’s argument make no sense whatsoever. Respondent states as one point:
Here, had the jury believed Doe had unintentionally attempted to kill Mr. Moe in the heat of passion, but found they could not convict him of murder (due to the heat of passion), and could not convict him of voluntary manslaughter (due to the instruction requiring intent to kill), it would have convicted him of involuntary manslaughter. Since the jury found Doe guilt of the attempted murder of Moe, it could not have believed his heat of passion defense; nor was it likely the jury believed Doe unintentionally attempted to kill Moe, since he was shooting at him at close range with a handgun.
(RB 42 [emphasis added].)
Appellant was accused of the attempted murder of Moe. Attempted murder, by definition, requires an intent to kill. (CALJIC No. 8.66; People v. Chinchilla, supra, 52 Cal.App.4th at 690; People v. Lashley, supra, 1 Cal.4th at 945, fn. 4.) Therefore, respondent’s comment about the jury hypothetically finding that appellant “unintentionally attempted to kill Mr. Moe” makes no legal sense. Furthermore, it is logically impossible for anyone to “unintentionally attempt to kill” someone. Also contrary to respondent’s statement, neither “voluntary manslaughter” nor “involuntary manslaughter” is a lesser included offense with respect to attempted murder. There is no such crime as attempted involuntary manslaughter and, of course, appellant’s jury was never instructed on attempted voluntary manslaughter. Assuming that the jury did find that appellant “was shooting at [Moe] at close range with a handgun,” that certainly would not have precluded the jury from convicting appellant of attempted voluntary manslaughter (based upon imperfect self-defense or heat of passion) if the jury had been properly instructed on that option.
Respondent also argues that “[i]n finding Doe guilty of attempted murder rather than voluntary or involuntary manslaughter, the jury must necessarily have concluded he did not act in unreasonable self-defense.” (RB 43.) This makes no sense because voluntary and involuntary manslaughter are not lesser offenses of attempted murder and, moreover, the jury was given no lesser included alternatives to finding appellant guilty of attempted murder on count 2. Respondent appears to be attempting to argue that because the jury found “Doe guilty of attempted murder” on count 2, that forecloses any error in failing to provide the jury with any lesser included alternative to that charge, i.e., attempted voluntary manslaughter. This is hardly the law; if it were, the failure to instruct on a lesser included offense would never result in reversal. (See People v. Breverman (1998) 19 Cal.4th 142, 177-178.)
In the present case, there was certainly evidence before the jury that appellant may have acted in unreasonable self-defense or heat of passion in shooting at Moe. (See AOB 12, 14.) Furthermore, no given jury instructions resolved that factual issue. (See Yates v. Evatt, supra, 500 U.S. at 404-405.) Therefore, reversal is required.
REPLY BRIEF FOOTNOTES:
Actually, count 2 charged appellant with the attempted murder of “an CMB gang member/associate” (5 CT 1216), but it was clear that this charge concerned an alleged attack on Moe. (See 23 RT 3180 [prosecution argument].)
Such a shortcut by the jury would have been illegitimate for the reasons stated in Argument I of appellant Doe’s opening brief.
