PEOPLE OF THE STATE OF CALIFORNIA, ) NO. D014513
Plaintiff/Respondent, ) S.D. CR. 113414
JOHN DOE, )
The Honorable William D. Mudd, Judge
CHARLES M. SEVILLA
the behavioral sciences unit for the Pima County Sheriff in Arizona (and a law enforcement agent himself), testified that he investigated 150 to 200 officer involved shootings. He testified that: “I think sudden, unexpected movement is probably the most common stimulus in shooting, particularly police shootings, that they will relate that they shot in response to the movement” (RT 1727).
I don’t call those accidental shootings. I think they are survival-type shootings. So I think yes, the movement is very critical for the person making that reflexive type of decision to survive…. I think the fact that someone is shot in the back (RT 1731) in and of itself is not enough information to determine what the person’s who fired the weapon’s intentions were or the target that the person was aiming at when they pulled the trigger.
I’ve reviewed shootings and have seen that first-hand and I’ve also seen that through my review of shootings from (RT 1732) other jurisdictions, yes…. It’s been my experience in looking at data that upwards sometimes as high as 25 per cent of police shootings [involved a person being shot in the back]. That doesn’t necessarily mean that when the target was aimed at that the target was aimed at the back of the subject who was shot. That the subject could turn more rapidly than the individual was able to pull the trigger.
The basic standard the police officers in the United States are being trained at today for confronting an edged-weapon attack, if their weapon is holstered, and they’re confronted with a subject with an edged weapon, is 21 feet…within that…distance…the trained police officer is able to draw their weapon and take aim and fire two rounds…I have to assume based on that data that given the proximity of Mr. Doe to Mr. A, that a lethal threat existed (RT 1734-35).
I. APPELLANT’S CONVICTION FOR VOLUNTARY MANSLAUGHTER MUST BE REVERSED BECAUSE THE JURY, WHICH ACQUITTED ON THE CHARGED COUNT OF MURDER, WAS IMPROPERLY INSTRUCTED ON THE LESSER INCLUDED OFFENSE (LIO) OF VOLUNTARY MANSLAUGHTER OVER DEFENSE COUNSEL’S OBJECTION BECAUSE THE LIO THEORIES WERE DIRECTLY CONTRARY TO THE DEFENSES ASSERTED—NAMELY, JUSTIFIABLE HOMICIDE AND ACCIDENTAL SHOOTING.
Appellant was charged with murder. He was acquitted of that charge. The trial court, over appellant’s objection, expanded the charges by erroneously instructing on manslaughter. Reversal is compelled.
Appellant testified that he went to the A’s vehicle to try and get the keys to prevent Mr. A’s escape:
I thought he was going to put the keys in his car and drive off… I was going to reach across and try and grab the keys from him, if he tried to put them in the ignition…. he says: Well, try this. And he swung at me like that. I went back. I hit the car door. I remember coming back with the gun, but I don’t know what he did (RT 1480).
After Mr. A swung at him, appellant noticed the sharp instrument in Mr. A’s hand and then pulled the gun out of his pocket and chambered a round (RT 1481-82). He thought Mr. A had just tried to stab him (RT 1483). So he yelled: “Freeze. Put the knife down. And right—he’s still moving, his hands wouldn’t quit. It was like he was trying to do something here” (RT 1483). He yelled it again and again.
At this point I told him the third time: put the knife down…. There’s a movement, and I just remember closing my eyes, and it was like I backed up.
Q: So your impression is you saw a movement coming toward you?
Q: Did you close your eyes?
A: Yes…. I remember backing up, and I believe that’s when the gun went off. And I remember coming forward again like I just looked (RT 1486).
Appellant testified that at no time did he intend to shoot Mr. A (RT 1487). A videotape of his post-arrest statement was also played in which he said the same thing (RT 1510, Deft’s Exhibit FFF & GGG).
It is clear from this testimony, that appellant’s version of events was that the gun went off accidentally as he backed up in the face of the arm swing movement of Mr. A. From this and other evidence, appellant relied upon two defense theories at trial: 1) accidental shooting within the general context of, 2) self-defense. [Footnote 22]
During the instruction conference, the court stated that it was inclined to instruct the jury on
voluntary manslaughter based upon heat-of-passion and imperfect self-defense. Defense counsel objected strenuously to the giving of such instructions for tactical as well as legal reasons (RT 1783, 1789, 1791, 1793). The prosecutor, despite requesting the LIO instruction on imperfect self-defense (RT 1792), argued to the jury that nothing in the evidence “negate[d] malice aforethought” (RT 1975-76, 2083). [Footnote 23] The court gave the instructions anyway, although they were in direct conflict with the defendant’s theories of the case, stating:
…I’ve got an obligation, if the evidence merits giving the instruction, to give them sua sponte despite what the position of the defense might be (RT 1792).
…it will be my intent to give the instructions on the lesser included offenses…it’s clear that these lesser included offenses could be established on the evidence that the court has before it (RT 1797).
The trial court did not follow the controlling rule that lesser offense instructions may not be given over objection when inconsistent with the proffered defense. In People v. Sedeno (1974) 10 Cal.3d 703, 716, the Supreme Court stated generally that “[t]he obligation to instruct on lesser included offenses exists even when as a matter of trial tactics an appellant not only fails to request the instruction but expressly objects to its being given.” However, Sedeno also set forth the following rule as to the court’s duty to instruct sua sponte on defense theories and lessers:
the duty to give instructions, sua sponte, on particular defenses [Footnote 24] and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case. Indeed, this limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon (at 716; emphasis added).
There is thus no duty to give jury instructions on possible defenses unless there is substantial evidence supportive of the defense and the defense is not inconsistent with the defendant’s theory of the case.
The above Sedeno rule on the giving of instructions on lessers was again set forth in People v. Wickersham (1982) 32 Cal.3d 317. There, the defendant was convicted of the first degree murder of her husband. The trial court instructed on first degree murder and involuntary manslaughter only.
The defense theory was that the victim was accidentally shot during a sudden scuffle while the defendant had been trying to keep her husband away from her gun. She denied any intent to fire the gun or kill her husband. Defense counsel only requested involuntary manslaughter instructions.
The conviction was reversed for failure to instruct on second degree murder. Wickersham quoted Sedeno (at 10 Cal.3d 716; see quote above). In reversing, the Court noted that a trial court should not instruct on a heat-of-passion voluntary manslaughter or imperfect self-defense where the same facts would give rise to a finding of reasonable self-defense (32 Cal.3d at 328-29).
There should be no “unreasonable or imperfect self-defense” instruction unless there is an intentional killing as opposed to an accidental one (32 Cal.3d 328). And even if the evidence ordinarily would warrant such an “unreasonable self-defense” instruction:
unreasonable self-defense falls within Sedeno’s category of “defenses” for purposes of the duty to instruct sua sponte…. [T]he trial court need only instruct on a particular defense “if it appears that the appellant is relying on such a defense, or there is substantial evidence supportive of such a defense and the defense is not inconsistent with the appellant’s theory of the case” [citation to Sedeno]. (Wickersham, 32 Cal.3d at 329: emphasis added).
Unreasonable self-defense was not appellant’s theory; he at all times argued that he acted reasonably. Indeed, an argument of unreasonable conduct amounting to negligence could have completely nullified his defense of accident or misfortune (see next argument, Argument II, infra).
Even if facts are presented at trial from which the jury could find voluntary manslaughter based upon heat of passion, if the same facts could give rise to a finding of reasonable self-defense (and the defendant is asserting self-defense), the instruction should not be given. Wickersham stated “a trial court should not instruct on heat-of-passion voluntary manslaughter where the same facts would give rise to a finding of reasonable self-defense” (Wickersham, 32 Cal.3d at 328; accord People v. Ray (1975) 14 Cal.3d. 20, 25; People v. Federico (1981) 127 Cal.App.3d 20, 34: “the court should not render sua sponte instructions that are inconsistent with the defendant’s theory of the case.”)
The second Sedeno-Wickersham exception to a duty to instruct on lessers deals with instructing on unreasonable self-defense when the defendant asserts the shooting was an accident, eliminating the intent to kill. The Wickersham Court found that unreasonable self-defense was inconsistent with the theory of accidental shooting and ruled that the trial court was “under no obligation to instruct on unreasonable self-defense in the absence of a specific request by counsel” (32 Cal.3d at 329).
Since the California Supreme Court’s decisions in Sedeno and Wickersham, a few California Courts of Appeal have erroneously taken a divergent view of their holdings, finding that if the evidence supports a lesser offense instruction, it must be given irrespective of the defense position in opposition or the inconsistency with defenses proffered. See People v. Eilers (1991) 231 Cal.App.3d 288, 294, fn. 4, wrongly citing People v. Duncan (1991) 53 Cal.3d 955 (holding that failure to instruct on lesser included offenses at the request of defense counsel constituted invited error, and was not a basis for reversal on appeal). [Footnote 25]
Eilers clearly misreads the Sedeno-Wickersham rule because it finds that while the defendant may object to inconsistent defense theory instructions, it cannot block lesser included instructions:
Thus, a defendant may exercise some control over the trial court’s instructions regarding inconsistent defenses, but has no similar control over supposedly inconsistent lesser included offenses (231 Cal.App.3d 295).
This overly-simplistic rationale ignores that the only way lesser included offenses of murder may be given in cases such as this is through defenses such as heat of passion or imperfect self-defense. [Footnote 26] Without giving defense instructions such as heat of passion or imperfect self-defense, there could be no lesser included offense in this case. [Footnote 27] Wickersham’s analysis of what lesser included offenses could be given is based entirely upon what defenses were available.
Given its erroneous grasp of the Sedeno-Wickersham, small wonder that it chooses not to follow cases which hold that a defendant may block inconsistent defense instructions (and thus the lesser included offense instructions). See People v. Bobb (1989) 207 Cal.App.3d 88, 91 (“The trial court has a duty to instruct on necessarily included offenses which are not inconsistent with the defense”); People v. Hooper (1986) 181 Cal.App.3d 1174, 1183; (only “when an instruction on a lesser included offense would be inconsistent with the defendant’s theory of defense is the failure to instruct on a lesser included offense proper”); People v. Helton (1984) 162 Cal.App.3d 1141, 1146 (“It is obvious that the court has no duty to force instructions on an unwilling defendant”); People v. Allums (1975) 47 Cal.App.3d 654, 662-63 (same); and People v. McCoy (1984) 150 Cal.App.3d 705, 708 (quoting the rule).
These appellate courts have properly held that the Sedeno-Wickersham decisions do not mandate that every lesser instruction supported by the evidence must be given over defense objection. In People v. Bobb (1989) 207 Cal.App.3d 88, 91, the Third District held that the duty of the court to instruct sua sponte on lesser included offenses only applies to those lesser offenses which are not inconsistent with the defense. The defendant in Bobb was convicted of one count of unlawful sexual intercourse, and claimed that the trial court should have instructed sua sponte on contributing to the delinquency of a minor (Id. at 90). The appellate court ruled that due to recent legislative amendments contributing to the delinquency of a minor was no longer a lesser included offense within unlawful sexual intercourse (Id. at 96). Therefore, the trial judge had no duty to instruct sua sponte on the lesser offense of contributing.
In People v. Hooper (1986) 181 Cal.App.3d 1174, an arson case, the court upheld the refusal of the trial court to instruct on lesser offenses (which it held should have been given) because defense counsel “invited error” in expressing a “definite tactical decision that the instruction not be given” (at 1183). Here, had the trial court obliged appellant and not given the lesser included instructions, appellant would be precluded from raising the issue because of the “invited error” doctrine.
In People v. McKelvey (1987) 194 Cal.App.3d 694, the defendant was convicted of mayhem based upon his conduct of blinding the prosecuting witness with a pool cue (Id. at 698). The defendant claimed in his statement to police, that prior to his hitting the witness with the pool cue, she hit him with a pool ball—self-defense (Id. at 699), and at trial testified that the prosecuting witness was intoxicated and fell into the cue—accident (Id. at 700). On appeal, the defendant claimed the judge should have given a sua sponte instruction that the “honest but unreasonable belief in the need to defend oneself negates the ‘malice’ required for a mayhem conviction” (Id., at 701). In deciding whether such a sua sponte duty existed, the court analyzed the language of Sedeno and Wickersham, and concluded:
An unreasonable self-defense instruction should not be given…where a defendant makes a tactical decision to forego instructions on lesser included offenses and no lesser offense arising out of the same facts has been charged (Id. at 703).
…if defense counsel deliberately objects to lesser included offense instructions for tactical reasons [citation], neither instruction on the lesser nor on unreasonable belief are required (Id. at 704).
Although an unreasonable belief self-defense instruction would have been appropriate since Mr. McKelvey “was relying on this theory, which was very explicitly put to the jury” (Id. at 705), the McKelvey court held there was no error in failing to give the instruction sua sponte since Flannel-type instructions had previously been held applicable in the context of reducing murder to manslaughter, but not in reducing mayhem to some lesser offense (Id. at 705).
In People v. McCoy (1984) 150 Cal.App.3d 705, the defendant was convicted of attempted first degree murder. On appeal, he claimed that the trial judge should have instructed sua sponte on unreasonable self-defense. The court of appeal held:
the proffered defense of accident was inconsistent with the theory of unreasonable self-defense. Under these circumstances, the court was not obligated to instruct on this theory of manslaughter on its own motion (Id. at 712).
Here, appellant’s position at trial was fully supported by the Sedeno-Wickersham line of authority and the majority of appellate cases considering the legal issue. The jury in appellant’s case should not have been instructed on voluntary manslaughter based upon either a heat of passion or unreasonable self-defense theory, since these theories were directly contrary to the asserted defenses of accidental shooting and self-defense.
The trial court certainly was not required to give these instructions over appellant’s objection, but the trial court stated its inclination to give the instructions on voluntary and involuntary manslaughter, and defense counsel raised strenuous tactical and legal arguments against them (RT 1783, 1789, 1791-93). It should be also noted that a court’s failure to instruct on lesser included offenses over defense opposition may well be “invited error,” from which the defendant has no remedy. As stated in People v. Cooper (1991) 53 Cal.3d 771, 827, [Footnote 28] where “the record clearly reflects that the failure to instruct on [lesser included offenses] resulted from a deliberate choice by defense counsel as well as the defendant personally to utilize an all-or-nothing strategy” the defendant may not complain on appeal “that the court did exactly what he insisted upon.” See also People v. Duncan (1991) 53 Cal.3d 955, 969-70; People v. Bunyard (1988) 45 Cal.3d 1189, 1234.
Had the trial court followed defense counsel’s request not to instruct the jury on the lesser included offense of voluntary manslaughter, appellant would have no arguable issue to raise on this subject before this court. However, the trial court chose to give these instructions over defense counsel’s objection even though the lesser included offenses were inconsistent with appellant’s accidental shooting and self-defense theory. This was prejudicial error.
Prejudice. In a very close case, [Footnote 29] appellant was convicted of an uncharged offense, manslaughter, based on an instruction given by the trial court. His testimony was that he never intentionally shot Mr. A, but that the gun went off accidentally as he recoiled from the movement of Mr. A’s arm toward him.
The jury acquitted appellant of murder. Had there been no lesser included offenses, the jury’s job would have been completed and appellant acquitted. The erroneous result here is the same as if the court instructed on an uncharged non-included offense. Without a request from counsel, a defendant may not be convicted of such an offense (People v. Geiger (1984) 35 Cal.3d 510, 526); see also People v. Lohbauer (1981) 29 Cal.3d 364 (court lacks jurisdiction to convict on non-included lessers).
If a conventional People v. Sedeno [(1974) 10 Cal.3d 703, 720-721] prejudice analysis is conducted, it is commonly stated that if the jury necessarily made the factual findings against the defendant’s proposed instructional design (there, a request for a lesser instruction), then any error in failing to give that instruction to the jury is harmless. [Footnote 30]
Here, had the jury convicted appellant of either degree of murder, this claim might be undermined by the fact that a finding of the murderous intent constituted a jury rejection of the acquittal alternative. And the fact that the objected-to lessers were given might be a moot point because of the findings beyond a reasonable doubt on the murder count. However, the jury acquitted appellant of the only count in the information. Had the court not erred, there would have been no lesser offense to consider.
Prejudice is established and reversal mandated. The information should be ordered dismissed.
II. THE COURT ERRED TO APPELLANT’S PREJUDICE BY MISINSTRUCTING ON HIS MAJOR DEFENSE OF ACCIDENT BY NOT DEFINING CRIMINAL NEGLIGENCE AND THUS PERMITTING THE JURY TO IGNORE THE DEFENSE IF IT FOUND APPELLANT’S CONDUCT MERELY NEGLIGENT.
Failure to Define “Criminal Negligence.” The appellant’s testimony was that the gun discharged accidentally after a sudden movement by Mr. A. As a result, his
Footnote 22: Appellant argued to the jury: “Mr. Doe produced that gun in self-defense and that that gun fired as a result of the sudden movement of Mr. A with no intent accompanied by it, through accident, which Mr. Wolberg testified to, and that Mr. Doe is not guilty of any crime” (RT 2058).
Footnote 23: The prosecutor argued that the following evidence all showed malice (and thus implicitly the lack of provocation, heat of passion or unreasonable self defense): “the victim…doesn’t want any trouble…and he keeps walking away, or at least trying to” (RT 2078); “he [appellant] had the gun out first. It wouldn’t have mattered if it was a knife [held by Mr. A]” (RT 2079). The defense argues that “the victim lunged toward the defendant. Well, the victim was shot in the back” (RT 2080). “And was it just his [appellant’s] anger that got out of hand. And yes, that’s exactly what happened here” (RT 2081). “The victim then tries to get away from him. Mr. A runs up the street, putting the parked cars between himself and Mr. Doe. And Mr. Doe is getting madder…¶ You can be mad as hell and do a first-degree murder or a second-degree murder…That does not negate malice aforethought” (RT 2081-2082). “This is someone in a rage. Because he has put himself in the situation, because he has created this situation, he doesn’t get to say I was mad and, therefore, my actions are mitigated. He cannot set up his own standard of conduct. The standard of conduct is what is reasonable. And this is not.” (RT 2083). “…Mr. Doe tracked down Mr. A with a gun, that he wasn’t supposed to be carrying” (RT 2084).
Footnote 24: “Defenses” would include “heat of passion” and “imperfect self-defense” which were used in this case to give manslaughter instructions over defense objection (RT 1927-30). The court also instructed on appellant’s defenses which were inconsistent with heat of passion and imperfect self-defense—accident and reasonable self-defense (RT 1923-24). The “heat of passion” and “unreasonable self-defense” instructions were also inconsistent with the defense instructions proffered but rejected on using force to stop a fleeing felon (See Argument II).
Footnote 25: The Court of Appeals in Eilers failed to mention, much less grapple with, the explicit language of the Sedeno-Wickersham rule which holds that the jury should not be instructed on lesser included offenses which are contrary to the defense theory presented. Further, the reliance of the Eilers’ court on Duncan was improper given the factual distinctions between the two cases. The defendant in Eilers relied upon self-defense as justification for injuries inflicted on the complaining witness (Id. at 291). In Duncan, the defendant did not present an affirmative defense, but relied upon the jury finding reasonable doubt that the prosecution had proven he was the murderer. Thus, the issue presented in appellant’s case (and by the appellant in Eilers) was not before the Court in Duncan, since there was no defense with which the lesser included instructions would have conflicted had they been given in that case.
Footnote 26: Eilers demonstrates its error by stating that the most common example of its rule is where the defendant relies on alibi and the court instructs on self-defense (231 Cal.App.3d 288, 294 n. 3). Since neither alibi nor self-defense entail the giving of lesser included offenses, the example is meaningless to the problem presented—an objection to the giving of defense instructions on heat of passion and imperfect self-defense which results in the giving of unwanted lesser included offense instructions. No fair reading of Wickersham would allow the conclusion Eilers derived from it.
Footnote 27: “When a killing is proved to have been committed by the accused, and nothing further is shown, the presumption is that it was malicious” (People v. Roy (1971) 18 Cal.App.3d 537, 551).
Footnote 28: The appellant in Cooper relied on an uncorroborated alibi defense, and claimed that he had never approached the home in which the victims were killed. No theory such as self-defense or accident was presented to the jury. As in Duncan, supra, the issue presented in appellant’s case was not before the Court in Cooper since there was no defense with which the lesser included instructions would have been inconsistent.
Footnote 29: See the conclusion of this brief for close case analysis.
Footnote 30: This analysis does not allow reweighing of evidence—”such error cannot be cured by weighing the evidence in an effort to determine that it would not be reasonably probable that a correctly instructed jury would have convicted defendant of the lesser offense” (People v. Ray (1975) 14 Cal.3d 20, 32).