Brief Bank # B-743 (Re: FORECITE F 8.45b [Involuntary Manslaughter: Defined — Non-Inherently Dangerous Felony (PC 192(b))])
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA, No.
Plaintiff and Respondent,
vs.
DEFENDANT 1 and
DEFENDANT 2,
Defendants and Appellants.
_____________________________________________/
APPELLANT’S OPENING BRIEF
On Appeal From the Judgement of the Superior Court
of the State of California
In and For the County of Kern
HONORABLE CLARENCE WESTRA, JR., JUDGE
THOMAS LUNDY
Attorney at Law
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Appellant Defendant 2
By Appointment of Court of Appeal
Under the Central California Appellate Project
IV.
THE COURT ERRONEOUSLY FAILED TO
INSTRUCT THAT INVOLUNTARY MANSLAUGHTER COULD
BE BASED ON THE COMMISSION OF A NON-INHERENTLY
DANGEROUS FELONY
The trial court correctly determined that the “record is replete with evidence that would “justify” a jury finding that malice was not proven and returning a verdict of involuntary manslaughter as a lesser included offense of the murder charged in Count I. (RT 1382.) (The D.A. also recognized the availability of involuntary manslaughter as to Appellant Defendant 2. (RT 1120).)
However, the court prejudiciously erred by instructing only on involuntary manslaughter based on the commission of an “ordinarily lawful” act. [Footnote 1] (CT 552.) This effectively withdrew the question of involuntary manslaughter from the jury’s consideration because the acts upon which the homicide was predicated were obviously unlawful under PC §273a.
Instead the jury should have been instructed, under the Burroughs doctrine (People v. Burroughs (1984) 35 Cal.3d 824, 834-35), that involuntary manslaughter could be based on the commission of the non-inherently dangerous felony of child abuse/endangerment (Penal Code § 273a) by Appellant Defendant 1. [Footnote 2]
A. The Court Is Required To Instruct Sua Sponte On All Available Lesser Included Offenses
People v. Barton (1995) 12 Cal.4th 186 reaffirmed the soundness of the well-settled rule that requires sua sponte instruction on all lesser included offenses supported by the evidence. (See also, People v. Sedeno (1974) 10 Cal.3d 703.) Barton explained why the obligation to instruct is a sua sponte one. “‘Our courts are not gambling halls but forums for the discovery of truth.’ [Citation.] Truth may lie neither with the defendant’s protestations of innocence nor with the prosecution’s assertion that the defendant is guilty of the offense charged, but at a point between those two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court’s failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury’s truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an ‘all or nothing’ choice between the conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence.” (People v. Barton, supra, 12 Cal.4th at 196.)
B. Instruction Is Required on Any Lesser Supported by Substantial Evidence
Instruction upon a lesser included offense is required “‘when the evidence raises a question as to whether all 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. Melton (1988) 44 Cal.3d 713, 746.) The trial court must determine whether there is “evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men could have concluded that the particular facts underlying the instruction did exist.” [internal citations and quotation marks omitted]. (People v. Wickersham (1982) 32 Cal.3d 307, 324-25.) In other words, instruction on the lesser offense is required “so long as the record contain[s] substantial evidence from which a jury could reasonably conclude that defendant was not guilty of [the greater offense] but only of [the lesser offense].” (Barton, supra, 12 Cal.4th at 201.) This standard does not require or permit the trial court to determine the credibility of witnesses or evidence. (Wickersham, supra, at 324.) “The determination whether sufficient evidence supports an instruction must be made without reference to the credibility of that evidence.” (Mandatory Criminal Jury Instructions (2002) CJER Section 1.3.) “Doubt as to the sufficiency of the evidence to require a particular instruction should be resolved in the defendant’s favor.” (Id. at p 2.)
C. Argument Of Counsel Does Not Govern The Duty To Instruct
In making the determination of whether the record supports instruction on a lesser included offense, the theories of the parties are not to be considered. “A trial court’s sua sponte duty to instruct on lesser included offenses arises…not from the arguments of counsel but from the evidence at trial. ‘The jury should not be constrained by the fact that the prosecution and defense have chose to focus on certain theories.’ [Citation.] The trial court must instruct on lesser included offenses when there is substantial evidence to support the instruction, regardless of the theories of the case proffered by the parties.” (Barton, supra, 12 Cal.3d at 203.)
D. The Trial Court Should Have Instructed On Involuntary Manslaughter Based On The Commission Of A Non-Inherently Dangerous Felony
In the present case the court limited its instruction on involuntary manslaughter to a homicide occurring during the commission of “ordinarily lawful” act. (CT 552.) However, under the sua sponte obligation discussed above, the court should have instructed on involuntary manslaughter based on the commission of a non-inherently dangerous felony (i.e., Penal Code § 273a) with gross negligence.
1. Involuntary Manslaughter May Be Based on the Commission of a Non-Inherently Dangerous Felony with Gross Negligence
Penal Code §192(b) provides that involuntary manslaughter is a homicide which occurs during “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.” However, another basis for involuntary manslaughter may also be based on a homicide committed during the commission of a non-inherently dangerous felony. (People v. Burroughs (1984) 35 Cal.3d 824, 836; see also People v. Cameron (1994) 30 Cal.App.4th 591, 603; People v. Evers (1992) 10 Cal.App.4th 588.) [Footnote 3]
Hence, notwithstanding the failure of CALJIC 8.45 to identify the Burroughs doctrine, the jury should be instructed sua sponte on involuntary manslaughter based on the commission of a non-inherently dangerous felony when warranted by substantial evidence.
2. The Burroughs Doctrine Applies to Penal Code § 273a
Penal Code § 273a has been expressly held not to be an inherently dangerous felony for purposes of second degree felony murder. (People v. Lee (1994) 28 Cal.App.4th 1724.) Hence, the instruction should have been given because the record contains evidence from which the jury could have concluded that the homicide was committed without express or implied malice during the commission a Penal Code § 273a violation, with gross negligence. (See People v. Evers, supra [applicability of Burroughs doctrine to Penal Code § 273a recognized but no duty to instruct where the only possible inference from severe physical injuries was that the defendant knew and understood the probable consequences of his actions].)
In the present case the Burroughs doctrine was applicable to both the theory that Appellant Defendant 2 aided and abetted Appellant Defendant 1 and the theory that Appellant Defendant 2 acted with implied malice by failing to stop Defendant 1. (See pp.42-45, herein.)
a. The Burroughs Doctrine Was Applicable To The Aiding And Abetting Theory
Under the theory that Appellant Defendant 2 aided and abetted Appellant Defendant 1, Defendant 2 would be guilty of involuntary manslaughter under the Burroughs doctrine if her taping of the baby was found to be committed with gross negligence rather than malice. Under the evidence presented, the jury, as recognized by the trial judge, could have found that malice was not proven. As to express malice, the jury easily could have found a lack of intent to kill. [Footnote 4]
Absent express malice Appellant Defendant 1’s liability for murder or manslaughter turned on whether she acted with implied malice or gross negligence. The crime is second degree murder if “[t]he act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” (CALJIC 8.11; People v. Dellinger (1989) 49 Cal.3d 1212, 1222.) This requires “actual knowledge” of the life endangerment which is a subjective standard. (People v. Watson (1981) 30 Cal.3d 290, 296-97.) On the other hand, the crime is involuntary manslaughter if the defendant acted “without due caution and circumspection” or, in other words, with gross negligence. (Penal Code § 192(b).) This is an objective standard based on the reasonable person concept. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1083.) In sum, “[i]mplied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.” (People v. Watson, supra, 30 Cal.3d at 296.)
In the present case the jury could have had a reasonable doubt as to both the subjective awareness and conscious disregard mental states of implied malice.
There was ample evidence from which the jury could have reasonably inferred that Appellant Defendant 1 would not have consciously exposed her baby to a danger which Defendant 1 knew had a “high probability” of killing her. [Footnote 5]
There was evidence that, despite her frustrations with the baby, Appellant Defendant 1 did care about her welfare. For example, the very fact that Appellant Defendant 1 gave the baby to Ms I. when she wasn’t able to care for the baby herself (see pp. 3-4, herein) demonstrates a concern for the baby. In the words of trial counsel:
“So in October of ‘94 she’s almost homeless, has no shelter, no money, no food. What does she do? Probably the hardest, most difficult thing a parent could do, and that is admit you couldn’t take care of your children. So do you hide that from anybody? Do you say, I’m not going to tell because I just can’t? Do you get so frustrated you beat your children, that you strike them, that you kick them, that you suffocate them? No. You call your sister and you say, look, I have no money, no shelter, no food. I can’t take care of my children. I need help. I’m frustrated, I may commit suicide. Never, not once did she say, I’m going to hurt the kids. Not once.” (RT 1542:10-23.)
Also, Appellant Defendant 1 was insistent on obtaining crib for the baby so she wouldn’t fall off the bed. And, just days before the baby’s death Appellant Defendant 1 had been talking about her education. (RT 1546.) Additionally, defense witnesses testified that Appellant Defendant 1 and Appellant Defendant 2 were caring parents. (RT 1168; 1188-90; 1547.) Finally, Appellant Defendant 1’s concern for K could be inferred from her emotional reaction to K’s death. (RT 1127-28; compare cases finding implied malice based on post act conduct or statements demonstrating that the defendant didn’t care (pp.48-49, herein).) From this evidence the jury could very reasonably have concluded that notwithstanding her frustrations and ill-advised, grossly negligent attempts at discipline, Appellant Defendant 1 would not have consciously done the things she did to K if she actually realized they would likely cause her death.
Such a conclusion was also corroborated by the physical evidence and expert testimony. For example, there is substantial evidence that on several prior occasions Appellant Defendant 1 had taped K’s mouth with no apparent harm being caused. Mr. G testified that the tape was only on K’s mouth (RT 563, 638) and the existence of 13 pieces of tape around the crib suggest that the mouth had been taped on other prior occasions. This possibility is also suggested by Dr. B who testified that taping the baby’s mouth only would not have caused the suffocation. (RT 921.) Hence, despite the grossly negligent and reprehensible nature of these acts of taping the baby’s mouth, and even if the life endangering risk was objectively proven, the evidence reasonably permitted the jury to infer that Appellant Defendant 1 did not have actually appreciated that risk.
This inference is further supported in light of the evidence that Appellant Defendant 1 may never have intentionally taped K’s nose. As set forth above, the evidence suggests that only the mouth was taped on the prior occasions. The evidence regarding whether the nose was intentionally taped on the final occasion is sketchy and conflicting. Dr. B testified that there was only one tape-caused lesion on the very edge of one nostril. (RT 921-22.) He further testified that there was no indication of taping around the nostrils or underneath the nose. (RT 921-22.) This evidence and testimony was inconclusive, at best, as to whether there had been a conscious attempt to tape the child’s nasal airways. One reasonable inference would be that a conscious taping of the nose would have caused lesions over a much greater portion of the nose than occurred. From this it could be further inferred that the true intent was to tape the mouth and in so doing a small amount of tape was unintentionally placed over part of the nose. This inference is further supported by the fact that the tape was two inches wide (RT 517) which could result in some unintentional overlapping of the nose–especially if the taping was done in the dark. In sum, the nasal blockage evidence did not require the jury to conclude that Appellant Defendant 1 had intentionally taped both the mouth and nose. Substantial evidence supported the contrary inference that she was attempting to tape the mouth–an act which she did not believe to be life endangering–and unintentionally taped a portion of the nose.
The inference that Appellant Defendant 1 did not intentionally tape K’s nose is also supported by the testimony of defense expert Mr. K who opined that the death resulted because the nasal passages were blocked by an internal foamy edema and not by the tape. (RT 1265-66,1268.) According to Mr. K the combination of the tape over the mouth and the internal nasal blockage caused the suffocation. (Ibid.) This again provided a basis for conviction of involuntary manslaughter based upon an objective evaluation of the potential risks while negating implied malice based upon a reasonable doubt as to whether Appellant Defendant 1 actually understood and appreciated the danger that internal blockage of the nasal passages could combine with taping of the mouth to produce death.
Of course, the inference that the taping of the nose was unintentional doesn’t justify or excuse Appellant Defendant 1 actions but it does provide a rational basis, which together with the other evidence, could have raised a reasonable doubt that Appellant Defendant 1 acted with implied malice.
Finally, there was evidence that Appellant Defendant 1 was distraught and emotionally unable to cope with the stress relted to the care of the baby. She had given the children up to Ms. I for a period of time and had stated that the baby’s crying was “driving her crazy” and that she wanted to commit suicide. (RT 373-74.) This further evidence upon which the jury could have concluded that Appellant Defendant 1 was in a high-wrought emotional state which was inconsistent with the “subjective appreciation” and “conscious disregard” required for implied malice.
b. The Burroughs Doctrine Applies To The Theory That Defendant 2 Personally Harbored Malice
The D.A. only argued the aiding and abetting theory to the jury. However, the instructions also permitted the jury to convict Defendant 2 based on the allegation that he knowingly failed to stop Defendant 1 and, thus, harbored implied malice. (See RT 1119-20 [D.A. relies on this theory and People v. Burden (1977) 72 Cal.App.3d 603, in opposing the Penal Code §1118 motion].)
Appellant Defendant 2 argues elsewhere in this brief (pp. 47-51) that the evidence was insufficient to support this theory of malice as to Appellant Defendant 2. It follows a fortiori that involuntary manslaughter, based on the Burroughs doctrine, was a lesser included offense under the People v. Burden theory of implied malice. [Footnote 6] That is, if the jury found that Appellant Defendant 2’s “failure to stop Defendant 1” was the product of gross negligence rather than implied malice then he was guilty of involuntary manslaughter, not murder.
c. The Error Was Exacerbated By the Failure To Instruct The Jury That Defendant 2 Could Be Convicted Of Involuntary Manslaughter Even If Defendant 1 Was Convicted Of Murder
While it was shown above that Defendant 2 and Defendant 1 could both have been convicted of involuntary manslaughter based on the Burroughs doctrine, it was also possible for the jury to convict Defendant 1 of murder and Defendant 2 of involuntary manslaughter. (See Argument IV, pp. 55-56, herein.) Moreover, the jury could have found Defendant 2 of gross negligence and involuntary manslaughter, based on his failure to knowingly aid and abet or personally harbor malice while at the same time finding Defendant 1 guilty of murder. Hence, the improper instructions and crgument that Defendant 2 was guilty of whatever crime Defendant 1 committed exacerbated the error in failing to instruct on the Burroughs doctrine. (Cumulative cites.)
d. The Error Was Prejudicial
Faced with the choice between first degree murder and second degree murder the jury convicted both defendants of the lesser option of second degree. However, by failing to instruct on the Burroughs doctrine, the court failed to provide any realistic option for the jury to consider that was less than second degree murder. “Lawful act” involuntary manslaughter, upon which the court did instruct, was not a realistic option because taping the baby’s mouth shut was not a lawful act. It was clear violation of Penal Code § 273a and the jury was so instructed. (CT 570-72.) Hence, the Burroughs error was prejudicial because it presented the jury with an unwarranted all-or-nothing choice between second degree murder and acquittal. (People v. Wickersham (1982) 32 Cal.3d 307, 324; see also (People v. Ramkeesoon (1985) 39 Cal.3d 346, 350.) Moreover, the error also requires reversal because it removed crucial factual issues from the jury’s consideration. [Footnote 7] (People v. Sedeno, supra, 10 Cal.3d 703.)
FOOTNOTES TO APPELLANT’S OPENING BRIEF
Footnote 1: CALJIC 8.45 was modified by deleting the unlawful act option for involuntary manslaughter as follows: [insert ct 552.]
Footnote 2: Defendant’s summary objection to instruction on second degree murder and involuntary manslaughter (RT 1382) did not waive the error. Error is invited only if defense counsel affirmatively causes the error….” (People v. Tapia (1994) 25 Cal. App. 4th 984, 1031; see also People v. Barton, supra, at 198 [invited error applies only where “the trial court accedes to the defendant’s wishes….”]; People v Wickersham, supra, 32 Cal.3d at 330 [invited error applies where “defense counsel intentionally caused the trial court to err”].) In the present case the judge overruled counsel’s objection to the lesser offenses and, hence, the judge did not “accede” to counsel’s wishes and the objection obviously did not induce or cause the error.
Moreover, invited error requires both that the defendant object and that a strategic reason for the objection be placed on the record. (People v Wickersham, supra, 32 Cal.3d at 330.) Here, no strategic reason for the objection was stated on the record.
Footnote 3: In apparent reliance upon this statutory language, CALJIC 8.45 (5th ed.) defined involuntary manslaughter only in terms of “a misdemeanor which is inherently dangerous to human life….” In so doing, CALJIC failed to recognize the Burroughs doctrine that involuntary manslaughter also occurs when the defendant commits, with gross negligence, an unintentional homicide in the course of a non-inherently dangerous felony. The 6th edition of CALJIC 8.45 contains revised language which provides the option of removing the bracketed reference to the non-felony status of the unlawful act. (CALJIC 8.45 Element 1.) However, according to the use note, this revision was included only to “distinguish felonies from misdemeanors because of the other crimes charged or referenced in the evidence.” Hence, CALJIC still has not recognized the Burroughs doctrine in its definition of involuntary manslaughter.
Footnote 4: Although there was some minimal evidence of intent to kill based on the prior statements of Appellant Defendant 1 — which were not admissible against Appellant Defendant 2 and shouldn’t be used in evaluating the evidence applicable to him–the jury was by no means compelled by the evidence to find an intent to kill. To the contrary, a much more reasonable interpretation of the evidence, in light of the entire record, was that the taping was motivated by Appellant Defendant 1’s desire to keep the baby from crying. Hence, there was substantial evidence from which the jury could have found a reasonable doubt that Appellant Defendant 1 intended to kill.
Footnote 5: In People v. Nieto-Benitez (1992) 4 Cal.4th 91, 111, the court held that the two linguistic formulations — “an act, the natural consequences of which are dangerous to life” and “an act [committed] with a high probability that it will result in death” — are equivalent and are intended to embody the same standard. (See also People v. Watson, supra, at 300.)
Footnote 6: The fact that the D.A. did not argue this theory did not relieve the court of its duty to instruct on lesser included offenses of the unargued theory. (People v. Barton (1995) 12 Cal.4th 186, 203.)
Footnote 7: The error violated both the state and federal constitutions. When the court fails to instruct upon a lesser included offense, the jury is left with an “unwarranted all-or-nothing choice.” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 350.) Under such circumstances, the due process clauses of both the United States Constitution (14th Amendment) and the California Constitution (Article I, § 7) are implicated by undermining the fairness and reliability of the conviction. By providing the jury with an all-or-nothing choice, the failure to instruct on the lesser included offense makes it likely that “‘the jury … resolve[d] its doubts in favor of conviction.’” (Beck v. Alabama (1980) 447 U.S. 625, 634, quoting from Keeble v. U.S. (1973) 412 US 205, 208; People v. Wickersham (1982) 32 Cal.3d 307, 324.) The failure to instruct sua sponte upon a lesser included offense where supported by the evidence has been held to violate the due process clause of the 14th Amendment. (Vujosevic v. Rafferty (3rd Cir. 1988) 844 Fed.2d 1023, 1027-28; see also Ferazza v. Mintzes (6th Cir. 1984) 735 Fed.2d 967, 968; Turner v. Marshall (9th Cir. 1995) 63 Fed.3d 807, 818-19 [discussing split in circuits on this issue].)
The error also implicated federal due process by arbitrarily denying his state law rights to full and correct jury instructions on lesser included offenses. (Hicks v. Oklahoma (1980) 447 U.S. 343.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA, No.
Plaintiff and Respondent,
vs.
Defendant 1 and
Defendant 2,
Defendants and Appellants.
_____________________________________________/
APPELLANT’S REPLY BRIEF
On Appeal From the Judgement of the Superior Court
of the State of California
In and For the County of Kern
HONORABLE CLARENCE WESTRA, JR., JUDGE
THOMAS LUNDY
Attorney at Law
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Appellant Defendant 2
By Appointment of Court of Appeal
Under the Central California Appellate Project
IV.
THE COURT ERRONEOUSLY FAILED TO
INSTRUCT THAT INVOLUNTARY MANSLAUGHTER COULD
BE BASED ON THE COMMISSION OF A NON-INHERENTLY
DANGEROUS FELONY
(AOB 54-65)
A. The Error Was Not Waived
Respondent cites People v. Duran (1983) 140 Cal.App.3d 485, 493 for the proposition that the trial court had no sua sponte duty to instruct on involuntary manslaughter based on the commission of a non-inherently dangerous felony. However, Duran has nothing to do with the court’s duty to instruct on lesser included offenses. It holds that the court has no duty to give cautionary or limiting instructions on evidentiary matters which is on an entirely different footing than the duty to instruct on lesser included offenses. (See People v. Barton, supra, 12 Cal.4th 186.) It is understandable that the attorney general ignores Barton because it blows his waiver argument out of the water. Under Barton the court’s duty to instruct on lesser included offenses is so fundamental that it prevails over an express objection much less a failure to request an instruction on a specific lesser included. (People v. Barton, supra, 12 Cal.4th at 198, 203.) Moreover, this duty extends to all “forms” of the lesser includeds that are supported by the evidence. (See Barton, supra, [duty extended to two forms of voluntary manslaughter: heat of passion and imperfect self-defense].)
Hence, the error was a “breach of the trial court’s fundamental instructional duty” and may be reviewed on appeal without a request for amplification or modification. (People v. Smith, supra, 9 Cal.App.4th at 207, fn. 20; see also People v. Marquez, supra, 1 Cal.4th at 581.) [Footnote 8]
B. Involuntary Manslaughter Under Penal Code § 192 Is A Lesser Included Offense Of Murder Under Penal Code § 187
Respondent seems to suggest that there was no duty to instruct on all applicable forms of involuntary manslaughter because Defendant 2 was not charged with felony murder. (RB 96.)
This suggestion is contrary to well settled authority.
It has long been held that a charge of murder under Penal Code § 187 (i.e., an unlawful killing with malice aforethought) “includes by implication the offense of manslaughter” (both voluntary and involuntary) under Penal Code § 192 which defines the offense as “the unlawful killing of a human being without malice.” (Stone v. Superior Court (1982) 31 Cal.3d 503, 517; see also In re McCartney (1966) 64 Cal.2d 830, 831; People v. Carmen (1951) 36 Cal.2d 768, 773-74; People v. Gilmore (1854) 4 Cal. 376, 380.)
Moreover, it has been specifically held that a killing during the commission of the non-inherently dangerous felony of child abuse under Penal Code § 273a requires instruction on involuntary manslaughter if there is evidence from which the jury could find that absence of malice. (People v. Evers, supra, 10 Cal.App.4th 588, 595-96 [discussing the duty to instruct on involuntary manslaughter based on People v. Burroughs (1984) 35 Cal.3d 824].)
The attorney general doesn’t even cite Evers and provides no authority for his assertion that the long settled rule discussed above does not apply to the present case. Accordingly, because the jury could have found the killing to have been committed without malice based on the failure of Defendant 1 to subjectively appreciate the dangerousness of her conduct (See AOB 60-63), the jury should have been instructed on the Burroughs theory of involuntary manslaughter. (People v. Evers, supra, 10 Cal.App.4th at 595-98.)
C. The Taping Of The Victim’s Mouth Was Not A Lawful Act
Respondent contends that the Burroughs doctrine was inapplicable because “the taping of the baby’s face [is] an act which in and of itself was not unlawful.” (RB 93.) On this basis respondent challenges Defendant 2’s contention that taping the baby’s mouth was a violation of Penal Code § 273a (RB 94, 96) and asserts that no instruction on unlawful act involuntary manslaughter under the Burroughs doctrine was warranted by the evidence.
This argument is inexplicable. Is the attorney general suggesting that parents may lawfully tape their baby’s mouths as a form of discipline? While some might seek to justify this as a form of corporal punishment, that view has been rejected. [Footnote 9] Moreover, the jury was specifically instructed that it is a violation of Penal Code § 273a to willfully or negligently “permit the child to be placed in a situation that endangered the child’s person or health” or to willfully or negligently “inflict [ ] unjustifiable physical pain or mental suffering on a child.” (CT 564-6.) And, the district attorney argued that this very same act was sufficiently egregious to warrant a charge of murder. (See RT 1455.)
In sum, respondent unpersuasively contends that the taping was a lawful act to which the Burroughs doctrine was not applicable.
D. The Lawful Act Manslaughter Instruction Did Not Present The Burroughs Theory To The Jury
For the same reasons set forth in the preceding section, respondent’s contention that the lawful act manslaughter instructions encompassed the Burroughs form of involuntary manslaughter (RB 95) should be rejected. In light of the instructions on Penal Code § 273a and the district attorney’s argument, no reasonable juror would have believed the taping to be a lawful act. [Footnote 10]
E. Conclusion
In sum, there are three fundamental flaws in respondent’s argument.
First, respondent’s failure to discuss the Barton opinion resulted in the erroneous assertion that the trial court had no sua sponte duty to instruct on all forms of involuntary manslaughter supported by the evidence.
Second, the failure to discuss People v. Evers, supra, and established California precedent regarding the law of homicide resulted in respondent’s erroneous assertion that the Burroughs theory of involuntary manslaughter was not included within the charge of murder.
Third, the unwarranted assumption that taping a baby’s mouth is ordinarily a lawful act caused the attorney general to erroneously assert that no instruction on the Burroughs doctrine was required under the evidence. [Footnote 11]
FOOTNOTES TO APPELLANT’S REPLY BRIEF
Footnote 8: It should also be noted that here and throughout respondent’s brief, the attorney general ignores Penal Code § 1259 which permits review, without objection below, of instructional errors that impact the defendant’s substantial rights. (See pp. 2-3, fn.1, above.)
Footnote 9: In Kate’s School v. Department of Health (1979) 94 Cal.App.3d 606, 622-24 (Appendix I, Item XV), the court found taping a child’s mouth closed to be an act of corporal punishment and rejected the school’s contention that such acts were acceptable behavior modification techniques. The court specifically held that the motive or intent of the school did not make acts of corporal punishment permissible under the regulations governing the school.
Footnote 10: Respondent’s also mistakenly assumes that the lesser included argument is based on the violation of the violation of Penal Code § 273a alleged in Count II. (RB 96.) That is not appellant’s position and none of the AOB references cited by respondent contain any reference whatsoever to a reliance on the acts alleged in Count II. To the contrary, appellant’s briefing refers only to the taping of the baby upon which the homicide was predicated. (AOB 54, 59, 61-63.) Nevertheless, to the extent that the charges were based on the prior acts, the Burroughs doctrine was equally applicable thereto.
Footnote 11: Respondent refuses to discuss two subsidiary points argued by Appellant Defendant 2 for alleged failure to provide reference to the record and citation to authority. (RB 96-8.) While these points are certainly not necessary to the showing of reversible error, Appellant Defendant 2 objects to respondent’s failure to address the claims.
The matters to which Defendant 2 was referring should have been obvious to respondent. With regard to the question of whether the jury instructions permitted conviction of Defendant 2 based on implied malice respondent needed only to look at the standard implied malice instruction given in the case. (CALJIC 8.11; CT 542-43.) The fact that Defendant 2 failed to provide a citation to the precise location of that instruction does not justify respondent’s failure to address the argument. As to the exacerbation of the error by the failure to allow conviction of Defendant 2 for a lesser offense than Defendant 1, the page cross-reference in Defendant 1’s Appellant’s Opening Brief is incorrect: is should be to pages 69-71. However, notwithstanding this typographical error respondent should have known to which argument the brief was referring. Nevertheless, Appellant Defendant 2 would have no objection to allowing respondent leave to address this issue in a supplemental brief, if necessary.
