Brief Bank # B-719 (Re: F 8.45 n5 [Involuntary Manslaughter As LIO Of Murder Based On Assault Or Battery Without Malice].)
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NOTE: The following document consists of two separate opening briefs, B-719a and B-719b.
NOTE: The text of the footnotes appear at the end of the document.
BRIEF # B-719a
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA 3 Crim. C000000
Plaintiff and Respondent, Yolo County
v. No. 00000
JOHN DOE and
Defendants and Appellants.
Appeal from the Judgment of the Yolo County Superior Court
Honorable Stephen L. Mock, Judge
APPELLANT DOE’S OPENING BRIEF
Attorney at Law
P.O. Box 2190
Nevada City, CA 95959
Telephone: (916) 265-3696
State Bar No. 88495
Appointed by the Court of
Appeal, In Conjunction with the
Central California Appellate
Attorney for Appellant
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT
THE JURY ON INVOLUNTARY MANSLAUGHTER AS A
LESSER INCLUDED OFFENSE TO MURDER.
The trial court instructed the jury as to the following offenses lesser to the first degree murder charged in Count 1: implied malice second degree murder (CALJIC No. 8.31; CT 443; RT 1502); assault with a deadly weapon or force likely to produce great bodily injury (§ 245, subd. (a)(1); CALJIC Nos. 9.02, 9.00, 9.01, 9.08; CT 447-450; RT 1503-1505); and battery with serious bodily injury (§ 243, subd. (d); CALJIC No. 9.12; CT 451; RT 1505-1506). Thus, the jury learned of two theories of homicide: first degree murder by torture and second degree implied malice murder. [Footnote 1]
Because the trial court failed to instruct the jury on involuntary manslaughter, the jury was unaware of an alternative lesser homicide theory supported by the prosecution’s evidence. As appellant will show, the error deprived him of substantial rights and in the context of this case requires reversal in Count 1.
B. Nature Of The Error
“It is black letter law the trial court must instruct the jury on every theory of the case which is supported by substantial evidence. [Citations.]” (People v. Glenn (1991) 229 Cal.App.3d 1461, 1465.) This duty is founded in the defendant’s constitutional right to have the jury determine every material issue presented by the evidence and on sound public policy considerations. [Citation.]” (Id. at 1467; see also § 1159.) The governing principles are well settled:
[A] trial court must, sua sponte, or on its own initiative, instruct the jury on lesser included offenses “when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.” [Citation & fn.] “The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient o establish a lesser included offense.” [Citation.] (People v. Barton (1995) 12 Cal.4th 186, 194-195.)
Evidence “sufficient” to trigger the duty of instruction is that “from which a jury composed of reasonable persons could conclude the defendant was guilty of the lesser crime. [Citations.]” (People v. Glenn, supra, 229 Cal.App.3d at 1465, emphasis in original.) The reviewing court must assume the jury could have believed the evidence of the party claiming instructional error, if that evidence was legally substantial, drawing reasonable inferences in that party’s favor. (Henderson v. Harnischfeger Corp. (1974) 12 Ca1.3d 663, 673-674; Mock v. Michigan Millers Mutual Ins. Co. (1992) Cal.App.4th 306, 322.) “The determination whether sufficient evidence supports the instruction must be made without reference to the credibility of that evidence. [Citation.]” (People v. Marshall (1996) 13 Cal.4th 799, 846.) Any doubts about sufficiency of the evidence should be resolved in the defendant’s favor. (People v. Glenn, supra, 229 Cal.App.3d at 1465.
Tested according to these principles, the evidence raised a genuine issue as to whether Doe acted with malice in inflicting the beating which caused Mr. W’s death. “Murder is the unlawful killing of a human being . . . with malice aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied. . . . .” (§ 188.) “Malice is express when the defendant harbored an intent unlawfully to kill. (§ 188.)” (People v. Whitfield (1994) 7 Cal.4th 437, 450.) This alternative was expressly rejected by the prosecutor and court, and the jury was not instructed as to any homicide theory requiring an intent to kill. (RT 1457-1462; see, e.g., RT 1461 [court to Doe’s counsel: “I don’t construe the evidence as indicating that at any time your client intended to kill Mr. W.”].) That left implied malice as the sole homicide mens rea theory offered to the jury.
“Malice is implied ‘”when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . . [Citations.]”’ [Citation.]” (People v. Whitfield, , 7 Cal.4th at 450.) Effectively, if Doe were to be found criminally responsible for Mr. W’s death, the jury had to determine that the homicide itself was unintentional. (People v. Brito (1991) 232 Cal.App.3d 316, 321, fn. 4.) [Footnote 2]
Although the evidence showed that Doe did not intend to kill Mr. W, it did not mandate a finding that Doe “act[ed] deliberately with conscious disregard for life. [Citation.]” (Ibid.) “The critical factor in distinguishing the degrees of a homicide is . . . the perpetrator’s mental state.” (People v. Ray (1975) 14 Cal.3d 20, 28.) The factual issue regarding implied malice should have been presented in a context which would have permitted a lesser verdict imposing guilt for the homicide. Such a possibility existed, in the form of instructions on involuntary manslaughter as an additional lesser offense.
C. Theories Of Involuntary Manslaughter
Manslaughter is “the unlawful killing of a human being without malice.” (§192.) Involuntary manslaughter is a killing committed “in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (a).) Generally, involuntary manslaughter is a lesser offense included within the crime of murder. [Citations.] People v. Prettyman, supra, 14 Cal.4th at 274.)
Despite the types of involuntary manslaughter specified in section 192, subdivision (a) , the courts have recognized that the statute does not strictly limit the bases of liability f or the offense. (See, e. g. , People v. Burroughs (1984) 35 Cal.3d 824, 835-836 [re unintentional homicide in the course of a noninherently dangerous felony with criminal negligence].) As this court recently noted, the proper scope of the offense must be viewed in its statutory context:
The crime of manslaughter complements the crime of murder. Thus, if a killing is unlawful it must constitute either a murder or manslaughter, the defining boundary being malice; if the homicide is unlawful and malice is lacking the offense is manslaughter. If the offense cannot be voluntary manslaughter, because the case law holds that voluntary manslaughter requires an intent to kill, it is manslaughter nonetheless and, a fortiori, must be involuntary manslaughter. People v. Cameron (1994) 30 Cal. App.3d 591, 604, emphasis added; cf. People v. Orr (1994) 22 Cal.App.4th 780, 784-785 [involuntary manslaughter not necessarily included within voluntary manslaughter, although both are lesser offenses included within murder]; cf. People v. Shannon (1996) 46 Cal.App.4th 1365, 1368-1370 [questioning, but following, Supreme Court case law defining voluntary manslaughter as specific intent crime requiring intent to kill].) [Footnote 3]
1. Voluntary Intoxication
At Doe’s request, the trial court defined voluntary intoxication for the jury (CALJIC No. 4.22; CT 468; RT 1518), and instructed them as to its relevance on the issue of specific intent or mental state. (CALJIC No. 4.21.1; CT 467; RT 1516-1518.) In support of this instruction, Doe testified that shortly before Mr. W’s arrival, Doe and Roe shared up to a pint of cognac and smoked up to two marijuana joints. Doe felt “buzzed” and drunk by the time Mr. W arrived, and Doe had no intent to beat him. (RT 1267, 1272, 1314, 1344-1345.) But when Mr. W made the comment and smirk about the money, Doe “lost it,” “lost [his] control” and beat him, with no intent to kill or torture him. (RT 1272-1273, 1276, 1314, 1404.) Doe felt like he “lost it” throughout the approximately two minutes of the beating. (RT 1347, 1406.)
The intoxication instruction incorporated all charged and lesser offenses, separating them into two categories:
(1) “[T]he fact that the defendant was voluntarily intoxicated is not a defense and does not relieve the defendant for the responsibility of the crime.” This principle applied to the charged crime of kidnapping and its lesser offense of false imprisonment, as well as the lesser offenses to murder and torture: assault with a deadly weapon or by means of force likely to cause great bodily injury, and battery with serious bodily injury. (RT 1516-1517.)
(2) The “exception to this general rule [is] where a specific intent or mental state is an essential element of the crime. In such event, you should consider the defendant’s voluntary intoxication in your determination of whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime. This principle applied to the charged crimes of torture and murder by torture, along with the lesser offense of second degree implied malice murder. (RT 1517-1518.) [Footnote 4]
Thus, the jury was invited to consider evidence of Doe’s intoxication in determining whether he was guilty of an unintentional murder. “But if an accused is unable to harbor malice and an intent to kill because of voluntary intoxication which does not render him unconscious he cannot be guilty of an unlawful homicide greater than involuntary manslaughter and the jury must be so instructed.” (People v. Ray, supra, 14 Cal.3d at 30, fn. omitted, emphasis added; cf. People v. Saille (1991) 54 Cal.3d 1103, 1121 [defendant must request “pinpoint” instruction relating intoxication to particular elements of crime; Ray distinguished as dealing with erroneous failure to instruct on lesser included offense]; People v. Webber (1991) 228 Cal.App.3d 1146, 1162 [Ray is “still good law” re sua sponte duty to instruct on involuntary manslaughter based on substantial evidence that because of intoxication defendant did not intend to kill].)
2. Assault Or Battery Without Malice
As noted above, this court’s opinion in Cameron took a broad view of the scope of involuntary manslaughter, based on its statutory context. Cameron itself must also be placed in context, particularly as to its disapproval of an earlier case from this court.
People v. Rhodes (1989) 215 Cal.App.3d 470, strictly construed the scope of involuntary manslaughter in a context very similar to the one raised here. The defendant, convicted of second degree murder based on a violent beating, argued that the jury should have been instructed on involuntary manslaughter. (Id. at 471-474.) This court found such an instruction “not completely inconsistent with his defense. Therefore, the instruction should have been given if there was substantial evidence to support a guilty verdict of involuntary manslaughter.” (Id at 475.) The evidence showed that at minimum the defendant, without justification, gave the victim a severe blow with a golf club, amounting to an (uncharged) aggravated assault under section 245, subdivision (a)(l). (Ibid.) But because that offense must be treated as a felony for purposes of analysis, it fell outside the statutory definition of involuntary manslaughter:
We recognize that in certain circumstances a killing that occurs in the commission of a felony can be involuntary manslaughter, but only when the felony is not inherently dangerous. [Citations, including Burroughs, supra.] That rule does, not apply here since assault with a deadly weapon is inherently dangerous due to the nature of the weapon or the degree of force. (Id. at 476.)
In a footnote, the court elaborated:
It does appear there could be an unjustified killing that does not fit within any of the statutory definitions of criminal homicide where one kills unintentionally and without malice as the result of an inherently dangerous felony. The absence of malice would preclude the finding of murder. [Citation.] Second degree felony murder cannot be used when the felony “is an integral part of the homicide” and the evidence shows the felony to be included in fact in the offense charged. [Citation.] The lack of intent eliminates voluntary manslaughter. [Citation.] And because the killing was caused by an inherently dangerous felony, the elements of involuntary manslaughter are not met. (Ibid., fn. 3.)
“Upon reflection” five years later in Cameron, supra, this court “[found] the conclusion in Rhodes untenable.” (30 Cal.App.4th at 604.)
Rhodes implicitly reads the description of involuntary manslaughter as an exclusive measure of the unlawful killings which can be treated as involuntary manslaughter. The rationale of Burroughs and [People v.] Morales [(1975) 49 Cal.App.3d 134, 144-145] rejects that reasoning when it results in placing an unlawful homicide without malice outside the overarching general description of manslaughter. Rhodes is correct that the rule of Burroughs and Morales . . . does not apply to a felony that is inherently dangerous to life. However, the rationale squarely applies if the jury may nonetheless determine under another doctrine of law that the malice aforethought required for murder was absent. [Citation.] (People v. Cameron, supra, 30 Cal.App.4th at 605, italics in original, underscoring added.)
In a footnote, the court suggested that because of the “analytically unfortunate” case law defining voluntary manslaughter as requiring an intent to kill, “an unlawful killing that results from a voluntary battery using force likely to cause great bodily harm but without malice” must be deemed involuntary manslaughter. (Id. at 604-605, fn. 8.) That suggestion, and its correction of Rhodes, dictates the resolution of the issue here. If the jury were to reject the malice element of murder, it was free to find the lesser included offenses of aggravated assault or aggravated battery. Doe admitted assaulting and beating Mr. W, while denying the intent to kill him. Unfortunately, the jury was given no instruction that linked these offenses to culpability for the homicide.
B-719a FOOTNOTES [Footnotes 1-4]:
Footnote 1: At the instructional conference, the court stated that based on the evidence and theories to be argued, it did not believe that voluntary or involuntary manslaughter were verdicts which could be reached by the jury. (RT 1457.)
Footnote 2: The court instructed the jury according to these principles, in defining both implied malice (CALJIC No. 8.11; CT 437; RT 1497) and second degree murder (CALJIC No. 8.31; CT 443; RT 1502).
Footnote 3: At issue VI, infra, appellant criticizes and argues that, at least in the context of a heat of passion killing committed with the equivalent of implied malice, voluntary manslaughter is shown. For purposes of the instant argument, appellant accepts the premise that voluntary manslaughter requires an intent to kill.
Footnote 4: At the time of the offenses in this case, the law permitted the use of intoxication evidence on the issue of whether the defendant harbored malice, whether express or implied. (People v. Whitfield, supra, 7 Cal.4th at 451.) Effective 1996, the Legislature amended section 22, subdivision (b), so as to limit the admissibility of intoxication evidence to the issue of express malice. (Stats. 1995, c. 793, 5 1.)
BRIEF # B-719b
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, No. H000000
v. Monterey County
JOHN DOE, Superior Court
Defendant and Appellant.
Appeal from the Judgment of the Monterey County Superior Court
Honorable Robert O’Farrell, Judge
APPELLANT’S REPLY BRIEF
SIXTH DISTRICT APPELLATE PROGRAM,
Attorney at Law
P.O. Box 2190
Nevada City, CA 95959
Telephone: (916) 265-3696
State Bar No. 88495
Appointed by the Court of Appeal,
under the Sixth District Appellate
Program Independent Case System
Attorney for Appellant
Moreover, even if respondent is correct in arguing that the evidence of implied malice is so strong as to rule out a general theory of involuntary manslaughter, appellant argued a second theory of the lesser offense expressly incorporating respondent’s premise: If Doe acted in a sudden quarrel or heat of passion so as to mitigate malice, but without the intent to kill, then he committed involuntary manslaughter. That is true even if acted with what otherwise would have been implied malice, i.e. , in conscious disregard of the danger to life. Appellant’s argument was based on a theory recognized in People v. Cameron (1994) 30 Cal.App.4th 591, in light of a problem recognized in People v. Shannon (1996) 46 Cal.App.4th 1365. (AOB 37-38.) Curiously, respondent does not address a single word to this alternative theory. Appellant urges this court not to follow respondent’s lead with respect to a substantial issue supported with legal authority and argument.
Appellant relied on Cameron for its discussion of the significance of “the overarching general description of manslaughter” in section 192″ as controlling, rather than merely the specific description of involuntary manslaughter in the statute. (30 Cal.App.4th at 605, emphasis in original.) This principle is based on Supreme Court authority, as respondent acknowledges in quoting People v. Burroughs (1984) 35 Cal.3d 824, 836. (RB 17.) Burroughs relied on this principle, along with straightforward logic, in holding that “an unintentional homicide committed in the course of a noninherently dangerous felony (which might, nevertheless, produce death if committed without due caution and circumspection) ought be punishable under section 192 as well.” (Ibid., fn. omitted.)
Instead of examining appellant’s actual point, respondent criticizes Cameron at length for suggesting that the Burroughs rationale should “extend involuntary manslaughter to inherently dangerous felonies . . . .” (RB 16-19, quote at RB 18.) But Cameron made no such suggestion, concluding that Burroughs “does not apply to a felony that is inherently dangerous to life.” (30 Cal.App.4th at 605, emphasis added.) Having misread to mean its opposite, respondent then failed to read the next sentence, which is the foundation for appellant’s theory: “However, the [Burroughs] rationale squarely applies if the jury may nonetheless determine under another doctrine of the law that the malice aforethought required for murder was absent. [Citation.]” (Ibid., emphasis added.)
Sudden quarrel/heat of passion is of course just such a “doctrine.” Its effect on what would otherwise be murder is only to negate malice, not criminal liability, so the killing is still treated as “unlawful.” As an “unlawful killing without malice” (§ 192), the crime is manslaughter, according to “the overarching general description” in the statute. (People v. Cameron, supra, 30 Cal.App.4th at 605, emphasis in original; People v. Burroughs, supra, 35 Cal.3d at 835-836.) “If the offense cannot be voluntary manslaughter, because the case law holds that voluntary manslaughter requires an intent to kill, it is manslaughter nonetheless and, a fortiori, must be involuntary manslaughter.” (People v. Cameron, supra, 30 Cal.App.3d at 604, fn. omitted.) Thus, if the defendant, in a sudden quarrel or heat of passion based on adequate provocation, attacks the victim and causes death, the crime is manslaughter. voluntary, if the defendant intended to kill the victim; involuntary, if the defendant deliberately acted against the victim with a conscious disregard for life or acted with criminal negligence. [Footnote 5]
That is appellant’s position in a nutshell, but respondent fails to address it. In arguing that the facts do not support appellant’s theory, respondent repeats its mischaracterization of the theory as “involuntary manslaughter based on an inherently dangerous felony . . . .” (RB 19-20.) Ironically, respondent acknowledges trial counsel’s reliance on heat of passion as an alternative defense theory. (RB 20.) The fact that appellate counsel relies on the same theory escapes respondent’s attention. Indeed, both in the body of the brief (RB 20) and in a footnote (RB 19-20, fn. 5), respondent suggests that counsels argument “undercuts” appellant’s position on appeal, “indicat[ing] that the defendant did not actually have the less culpable mental state required for involuntary manslaughter.”
Respondent is wrong in both law and fact. As to the former, “[a] trial court’s sua sponte duty to instruct on lesser included offenses arises . . . not f rom the arguments of counsel but from the evidence at trial.” (People v. Barton, supra, 12 Cal.4th at 203.) As to the latter, respondent misreads trial counsel’s argument. True, counsel discussed voluntary manslaughter, but in doing so she never referred to the requirement of an intent to kill. (See AOB 68-69, quoting argument; AOB 55, fn. 27.) In that sense, counsel’s argument to the jury was fully consistent with appellant’s position on appeal, even if she identified only voluntary manslaughter as the resulting offense. Had the court also instructed on involuntary manslaughter committed in the heat of passion or sudden quarrel, counsel’s argument would have been no less appropriate.
B-719b FOOTNOTES [Footnote 5]:
Footnote 5: As appellant acknowledged in his opening brief, People v. Shannon, supra, 46 Cal.App.4th 1365 held to the contrary, in the context of a heat of passion killing committed with conscious disregard for life but no intent to kill. The Court of Appeal resigned itself to a conclusion it criticized–that a second degree murder verdict was required. But the opinion failed to examine the Burroughs/Cameron analysis of involuntary manslaughter, which points to a different and more sensible result.