Brief Bank # B-532
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN
PEOPLE OF THE STATE OF CALIFORNIA, )
) Crim. B065783
Plaintiff and Respondent, )
) (Los Angeles County
) Superior Court
) No. CR KA010244)
ANTHONY SMITH )
(Aka DOE) )
Defendant and Appellant. )
APPEAL FROM THE JUDGMENT
OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Honorable Robert Martinez, Judge
APPELLANT’S OPENING BRIEF
JANET J. GRAY
ATTORNEY AT LAW
P.O. Box 51962
Pacific Grove, CA 93950
Attorney for Appellant
THE COURT ERRONEOUSLY INSTRUCTED THE JURY ON THE LAW OF
The court committed reversible error because it instructed the jury with an incomplete and inaccurate instruction on the lesser included offense of involuntary manslaughter. The failure to fully instruct upon the defense theory that appellant did not actually form the requisite mental states for murder due to intoxication and on the lesser included offense violated appellant’s federal constitutional due process rights under the Sixth and Fourteenth Amendments.
The court instructed the jury with CALJIC 8.47 on the lesser included offense of involuntary manslaughter. (RT 464.) The court instructed the jury in part that:
If you find that the defendant, while unconscious as the result of voluntary intoxication, killed another human being without an intent to kill and without malice aforethought, the crime is involuntary manslaughter. (RT 464.)
This instruction is misleading and incomplete because it does not instruct the jury that intoxication that does not result in unconsciousness may also justify a verdict of involuntary manslaughter. (People v. Ray (1975) 14 Cal.3d 20, 27-31.) The Ray court held that intoxication without actual unconsciousness could cause a defendant to commit a killing without actually forming express malice, implied malice or intent to kill. A killing done under these mental states while lacking elements of murder and manslaughter would nevertheless constitute involuntary manslaughter under the auspices of Penal Code, section 22. (lbid; see also People v. Webber (1991) 228 Cal.App.3d 1146,1160-1165; see also People v. Bobo (1990) 229 Cal.App.3d 1417,1442,1443.)
Thus an accurate and complete version of CALJIC 8.47 should have been given to the jury instead of the above-cited instruction as follows:
The crime is involuntary manslaughter if the defendant killed another human being but due to voluntary intoxication:
1. The defendant was unconscious; or
2. Even if conscious, the defendant neither intended to kill nor harbored malice.
Appellant is aware that the state supreme court has held that such an instruction is not required to be given sua sponte as it represents a pinpoint instruction that should be requested by defense counsel. (People v. Saille (1991) 54 Cal.3d 1103, 1121.) However the Saille holding should not be applied in the present case even though defense counsel did not request the above instruction because Saille was not decided on federal due process grounds raised by appellant in the instant case. Cases are not authority for propositions not considered by the ruling court. (See, e.g. People v. Dillon (1983) 34 Cal.3d 441, 473‑474.)
The Saille court failed to consider federal due process principles that require a court to instruct completely and accurately on all elements of the offense. (People v. Hernandez (1988) 46 Cal.3d 194, 211.) Voluntary intoxication relates directly to the requisite element of whether appellant formed the specific intent to kill. (Pen. Code, § 22 subd. (b); People v. Jackson (1984) 152 Cal.App.3d 961, 968.) Erroneously instructing the jury that involuntary manslaughter could only be found if appellant was legally unconscious effectively eliminated an essential part of the applicable intent considerations. (See, e.g. People v. Hedgecock (1990) 51 Cal.3d 395, 410 [instruction which removes a litigated issue from jury’s determination requires reversal].)
“It is settled that in a criminal case, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (Citation.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal. 3d 524, 531, see also, People v. Sedino (1974) 10 Cal.3d 703, 716.) Moreover, the rote recitation of general form instructions will not always suffice to fulfill the court’s instructional obligations. (People v. Thompkins (1987) 195 Cal.App.3d 244, see also, California Rules of Court, Appendix, Div. 1, 5.)
The instruction given by the court was simply incorrect law. Under controlling legal principles a jury does not have to find unconsciousness as a result of voluntary intoxication to negate actual intent to kill or malice, express or implied. (People v. Ray, supra, 14 Cal. 3d at pp. 27‑31.) The court’s failure to inform the jury of these principles resulted in the jury being incorrectly instructed regarding an essential element of the charged crime‑‑intent to kill.
The failure to adequately instruct on all necessary elements of the lesser included offense of involuntary manslaughter reduced the government’s burden of proof to establish beyond a reasonable doubt all elements of the charged offense. The United States Supreme Court has written, “(I)est there remain any doubt about the constitutional stature of the reasonable‑doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” (In re Winship (1970) 397 U.S. 358, 364, 25 L.Ed.2d 368, 90 S. Ct. 1068.) Jury instructions which relieve the government of this burden violate a defendant’s due process rights. (See Francis v. Franklin (1985) 471 U.S. 307, 85 L.Ed.2d 344, 105 S.Ct. 1965; Sandstrom v. Montano (1979) 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450.) The failure to adequately instruct upon an element of the offense violates the Sixth Amendment right to trial by jury. (Rose v. Clark (1986) 478 U.S. 570, 580-581, 92 L.Ed.2d 460, 106 S.Ct.3101.)
Although it is true that the jury was instructed with a definition of unconsciousness pursuant to CALJIC 4.30 this does not remedy the court’s failure to instruct that the appellant did not have to be legally unconscious in order for his voluntary intoxication to result in involuntary manslaughter. (RT 464, 465.) This instruction, which told the jury that appellant need not be incapable of movement to be unconscious, did not alter the fact that the jury was told to find involuntary manslaughter only upon a finding of unconsciousness as so defined.
The fact the jury was instructed on the statutory definition of involuntary manslaughter likewise did not remedy this omission in instruction. (RT 462.) Involuntary manslaughter within the confines of the statutory definition is not entirely applicable to the facts of this case because the act committed, lunging at the victim with a knife in hand, was not a misdemeanor nor did it constitute a lawful act which showed a conscious disregard for human life. (See, Pen. Code, § 192 subd. (b).) Thus the only manner in which this jury could have reached a verdict of involuntary manslaughter was for the court to have correctly instructed them that even if conscious, appellant’s voluntary intoxication could have rendered him without the actual intent to kill or harbor malice.
Because the error impacts the appellant’s constitutional due process rights, such error is reversible unless the state shows beyond a reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 US. 18, 17 L.Ed.2d 705, 87 S.Ct.824.) However, even if the court applies the lesser standard, that the error is reversible only if it is reasonably probable that a more favorable result would have been reached absent the error, the error is nevertheless prejudicial. (People v. Watson (1956) 46 Cal.2d 818.)
There was abundant evidence that appellant was under the influence of alcohol. (RT 80, 131, 136,257,274.) Not only were there witnesses attesting to the fact of his drunken state, but also a blood alcohol test showing a .13 alcohol level some six hours after taken into custody. (RT 80.) Further as to the issue of unconsciousness there were disputed issues about whether appellant was or was not in an alcohol blackout. (RT 102, 177, 196, 197, 257, 274.) Appellant claimed that he could not remember any events after he followed the victim out to the car. (RT 305.) The prosecution put in evidence that suggested appellant could recall events at that time, that he was not legally unconscious because of certain statements he made while in custody and after the stabbing had occurred. (RT 102, 196, 197.) Since the jury was erroneously informed that unconsciousness was required to find involuntary manslaughter, it would necessarily be precluded from reaching an involuntary manslaughter verdict if it believed prosecution witnesses that appellant appeared to be both conscious and mobile.
Appellant respectfully requests that his conviction be reversed as his federal constitutional rights to have all elements of the charges against him proved beyond a reasonable doubt was violated by the court’s failure to fully instruct the jury on essential elements of involuntary manslaughter.