Opinion Bank # O-314 (Re: (F 1.22 n1 / 5.12 n9 / F 5.15 n1 / F 5.50 n1 / F 5.51 n2 / F 5.17 n14 / F 5.17 n15 [Improper To Give CJ 1.22 (Definition Of Malice) In A Murder Case / Imperfect Self-Defense Without Intent To Kill: Requires Sua Sponte Instruction On Voluntary Manslaughter/ Failure To Request Antecedent Threats Instruction As IAC / Self-Defense: Sua Sponte Duty To Instruct / Imperfect Self-Defense Instruction Should Be Included With Manslaughter Instructions].)
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, F032309
Plaintiff and Respondent, (Super.Ct.No. 59947)
v. OPINION
ALFREDO JOSE SANDOVAL,
Defendant and Appellant.
__________________________________/
APPEAL from a judgement of the Superior Court of Kern County. Richard J. Oberholzer, Judge.
Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, J. Robert Jibson, Anthony L. Dicce and John O’Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
*FORECITE NOTE: The name of trial counsel has been changed.
Defendant Alfredo Jose Sandoval was convicted of the second degree murder of Jose Nieves. In addition, it was found he personally used a firearm. He appeals, claiming the trial court erred in not instructing the jury on involuntary manslaughter based on the theory of unreasonable self-defense; he was prejudiced by the trial court’s giving of an erroneous malice instruction; the trial court erred in failing to fully instruct on self-defense; and he was deprived of the effective assistance of counsel. For reasons that follow, we reverse.
PROCEDURAL BACKGROUND
In 1994, defendant was charged with one count of first degree murder. [Footnote 1] He was convicted of second degree murder. He appealed to this court. In an opinion dated March 2, 1998, we reversed defendant’s second degree murder conviction, finding, one of the manslaughter instructions was erroneous. (People v. Sandoval, F024536 (March 2, 1998).) We found the error was not harmless beyond a reasonable doubt. Because the matter was reversed for instructional error, we did not consider the claims of ineffective assistance of trial counsel raised in the consolidated petition for writ of habeas corpus. (In re Sandoval, F027919.)
Defendant was represented at his second trial by the same attorney who represented him at his first trial. Defendant’s second trial ended in a mistrial after the jury sent a note to the trial court stating it was deadlocked.
The case was reset for defendant’s third trial. Represented again by the same counsel, defendant was convicted of second degree murder. This appeal follows.
FACTS
In September of 1994, defendant lived with his father, his brother Rudolfo, Jorge Hernandez, and the victim Jose Nieves . Jorge Hernandez was the chief prosecution witness. On the morning of September 11, 1994, Nieves was wearing, defendant’s shoes. Defendant asked Nieves to return his shoes; Nieves refused. Defendant attempted to grab the shoes. Nieves grabbed defendant around the neck, threw him on the bed, and began choking defendant. Nieves had one arm wrapped around defendant’s neck, and he reinforced the choke hold by grabbing his hand on the choking arm with his other hand. Jorge Hernandez stood by and watched, offering no assistance to defendant. Defendant could do nothing; he could neither speak nor breathe. Defendant’s brother Rudolfo entered the room and told Nieves three times to release defendant. Nieves did not pay attention to Rudolfo. Rudolfo broke up the choking. Nieves was mad because Rudolfo broke up the fight. Defendant went to the kitchen and got a small knife. Defendant’s father took the knife from defendant. Nieves said to defendant if defendant did not kill him he would kill defendant and all of his family. Defendant’ s father asked Nieves to leave. Nieves left. That day defendant went to a swap meet and purchased gun.
The following Tuesday, defendant, Rudolfo, and defendant’s father arrived home from work. Jorge Hernandez arrived home shortly thereafter in a separate vehicle. Nieves was there with his shirt off. Nieves and Hernandez talked; Nieves was tranquil.
Defendant approached Nieves and politely asked him for his shoes. Nieves said he was not returning them. Nieves’s mood chanced, and he became very angry. Nieves made his hands into fists, lifted them up, and stepped forward to hit defendant. Defendant stepped back, pulled out a gun, and fired twice. The first shot hit Nieves in the biceps; the second hit him in the front of the head. As Nieves fell toward the ground, defendant fired one more shot to the back of Nieves’s head. Three to five seconds elapsed between the first and the second shot, and one or two seconds passed between the second shot and the third shot. Defendant fled.
Nieves died at the scene from gunshot wounds to his head. The gun was found lying next to Nieves’s body. There were three spent rounds and six live rounds left in the gun.
Defendant was arrested in Los Angeles. He was interviewed in Spanish by Deputy Sheriff Alfonso Crespo, who testified that defendant admitted he shot Nieves three times. After the first shot, Nieves grabbed defendant’s shoulder and shot him a second time. He was aiming for Nieves’s shoulder, but Nieves moved and instead defendant shot him in the face. Nieves fell down and defendant shot him in the head. Defendant said he bought the gun the Sunday before the shooting. Defendant also said he went into the house to retrieve the gun the day of the shooting.
Jorce Hernandez testified that Nieves was a known bully. He had been in a number of fistfights and had hurt a number of people.
Defense
Ortega Rosales testified that he had known defendant since he was young. He also knew Nieves. Nieves was a very violent person and Rosales had previously had a confrontation with Nieves. Nieves was known as a bully and a fighter. Defendant was not a fighter. Nieves was a violent, angry man, capable of hurting people. Nieves possessed a better physique than defendant.
Defendant’s brother Rudolfo testified that after he stopped Nieves from choking defendant, Nieves told defendant that if he did not kill Nieves, Nieves would kill defendant and his family. Nieves left but said he was going to return and kill the family.
On the day of the shooting Rudolfo arrived home with defendant and their father. Nieves arrived with another person and took his shirt off. Nieves came in the mood to fight. He did not have a weapon but he was capable of killing with his own hands. Rudolfo left, in the vehicle Nieves arrived in, to go buy some beer. Rudolfo testified that Nieves was very aggressive and had beaten many people in Mexico.
Defendant’s sister, Leticia testified that she knew Nieves. He was disrespectful, “gross”, and fought a lot. Nieves made disrespectful remarks to her of a sexual nature.
James Sanderson, a clinical psychologist, examined defendant. Defendant was severely disturbed and could not think clearly under stress. Defendant suffered from mild paranoid schizophrenia.
Defendant testified on his own behalf. Defendant had known Nieves for quite some time. Nieves was a good fighter. Defendant was fearful of Nieves, who was very strong. Nieves had previously hit defendant, and when defendant slept Nieves would sometimes grab defendant’s buttocks. Defendant would say no and Nieves would say, “Come on.” Defendant would have to move to the other side of the room to get away from Nieves.
Nieves took defendant’s shoes. Defendant’s shoes were important to him. On Sunday, defendant asked Nieves to give him his shoes. Nieves refused. Defendant grabbed Nieve’s legs and requested his shoes. Displaying anger, Nieves started choking defendant. Defendant felt pain and was scared, thinking, he would not draw another breath. Jorge Hernandez stood by and watched. Eventually, Rudolfo pulled Nieves off of defendant.
Defendant ran to the kitchen and got a small knife. Nieves saw defendant with a knife. Defendant’s father asked for the knife. Defendant complied. After this, defendant bought a gun because Nieves had threatened defendant and his familv. He bought ammunition and put it in the gun.
The following Tuesday, the day of the shooting, defendant arrived home from work. Nieves also arrived at his home. Nieves got out of his truck quickly and took off his shirt. Defendant ran into the house and got the gun. The truck left, and defendant thought Nieves was gone. (In fact, the truck left with Rudolfo and the other person to go buy beer.) Defendant went outside. Nieves stared at defendant and Nieves’s face changed color. Defendant asked Nieves to give him his shoes. Nieves said no and told defendant it would have been better if defendant had used the knife (after the Sunday choking) because Nieves was going to “fuck [defendant] up.”
Nieves was mad and cussing. Nieves raised his fists, and defendant thought Nieves was going to attack him like he had on Sunday. Defendant knew from the previous Sunday that Jorge Hernandez, who was standing by Nieves, would not protect defendant.
According to defendant, he feared Nieves was going to hit him. Nieves moved forcefully toward defendant. Defendant backed off, pulled out the gun, and shot Nieves. Nieves said, “You son of a bitch.” Defendant shot again. As Nieves was coming forward toward defendant, defendant lowered the gun and shot Nieves one more time. The shots were fired quickly.
Defendant testified he did not intend to kill Nieves; he only wanted to defend and protect himself. He fired blindly and could not think.
DISCUSSION
I.
Instructions on Unreasonable Self-defense
The jury was instructed on second degree murder with express malice and voluntary manslaughter based on heat of passion or unreasonable self-defense. The voluntary manslaughter instructions given listed intent to kill as a requirement.
No instruction was given on second degree murder based on implied malice, nor was the jury given any instructions or verdict forms for involuntary manslaughter. During the brief conference on jury instructions, defendant’s counsel indicated he felt an instruction on implied malice was not appropriate because when a person shoots someone, “either he intended to kill or he didn’t.” However, the district attorney and the trial court expressed the view that the facts would support implied malice instructions.
Defendant claims the trial court had a sua sponte duty to instruct on the unreasonable self-defense form of involuntary manslaughter. Defendant argues that the instructions as given did not leave the jury with any option, except acquittal, if it found defendant unintentionally killed Nieves with the actual but unreasonable belief deadly force was necessary. Defendant asserts that the evidence supports this theory. Defendant testified he acted out of fear, did not intend to kill Nieves, and fired blindly. He utilized only three of the nine live rounds in the gun.
Respondent contends that absent a request, instructions on involuntary manslaughter were not required in this case. In any event, respondent claims any error was harmless because the defense was that defendant shot an evil man in self-defense or heat of passion. Because defendant’s final shot to the back of Nieves’s head occurred while Nieves was on the ground, the jury must have been convinced that defendant was guilty of second degree murder.
Subsequent to the completion of briefing in this case, the California Supreme Court decided People v. Blakeley (2000) 23 Cal.4th 82, finding that voluntary manslaughter does not require an intent to kill and can be “committed when a defendant, acting with conscious disregard for life and the knowledge that the conduct is life-endangering, unintentionally but unlawfully kills while having an unreasonable but good faith belief in the need to act in self-defense.” (Id. at p. 85.) Dispelling the notion that voluntary manslaughter requires an intent to kill, the Supreme Court quoted from its earlier opinion in In re Christian S. (1994) 7 Cal.4th 768, 780, which pointed out the inequities of such a rule.
“‘[I]mplied malice is shown when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death … A defendant who acts with the requisite actual belief in the necessity for self-defense does not act with the base motive required for implied malice, i.e., with “an abandoned and malignant heart.” [Citation.] A contrary conclusion, namely, that imperfect self-defense applies only in cases of express, but not implied, malice would lead to a totally anomalous and absurd result, in which a defendant, who unreasonably believes that his life is in imminent danger, would be guilty only of manslaughter if he acts with the intent to kill his perceived assailant, but would be guilty of murder if he does not intend to kill, but only to seriously injure, the assailant. There is no authority to support such an incongruous rule.’ [Citation.]” (People v. Blakelev, supra, 23 Cal.4th at p.88.)
“[T]here is no valid reason to distinguish between those killings that, absent unreasonable self-defense, would be murder with express malice, and those killings that, absent unreasonable self-defense, would be murder with implied malice.” (People v. Blakeley, supra, 23 Cal.4th at p.89.) The Supreme Court did not foreclose “that a defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter.” (Id. at p. 91.) But, “a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter.” (Ibid., italics in original.) Because the Supreme Court had not spoken on the subject prior to Blakely and three appellate courts had held that such a killing was involuntary manslaughter, the Supreme Court found that retroactive application of its decision would be unconstitutional because the holding was an unforeseeable judicial enlargement of the crime of voluntary manslaughter. (Id. at p.92)
In Blakeley, the trial court instructed the jury on murder, voluntary manslaughter requiring an intent to kill, and involuntary manslaughter based on brandishing a weapon or “‘in the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.”‘ (People v. Blakeley, supra, 23 Cal.4th at pp. 86-87, 92-93.) The trial court refused the defendant’s requested instruction, which read: “‘Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of Penal Code § 192(b). [¶] In order to prove such crime, each of the following elements must be proved: [¶] 1. A human being was killed; and [¶] 2. The killing was unlawful. [¶] A killing is unlawful within the meaning of this
instruction when the accused actually but unreasonably believes in the necessity to defend himself and, having such mental state, unintentionally causes the death of a human being.”‘ (Id. at p. 86, fn. 1.) The defendant was convicted of voluntary manslaughter.
The Attorney General in Blakeley argued that the trial court did not have to grant defendant’s request to modify the involuntary manslaughter instructions. The Supreme Court disagreed and found it was error to not give the instruction upon request. In a footnote the Supreme Court stated it expressed no view whether the instruction was required absent a request. (People v. Blakeley, supra, 23 Cal.4th at p. 92, fn. 4.) The instruction was not requested here, so we must determine if it should have been given sua sponte.
In People v. Lee (1999) 20 Cal.4th 47 the Supreme Court discussed the trial court’s duty to give instructions in the manslaughter context. “[T]he duty to instruct sua sponte on lesser included offenses is not satisfied by instructing on only one theory of an offense if other theories are supported by the evidence. This obligation exists even when the defendant does not request the instruction or objects to its being given. [Citation] Evidence that an unlawful killing without malice occurred in the commission of an unlawful act not amounting to felony-the ‘misdemeanor manslaughter’ theory of involuntary manslaughter-is not simply the basis for a defense. Just as evidence of ‘unreasonable self-defense’ may establish one form of voluntary manslaughter and is not simply a defense [citations], evidence of misdemeanor manslaughter may establish another form of involuntary manslaughter.” (Id. at p. 61.)
Unreasonable self-defense is not simply a defense. A defendant may be guilty of voluntary manslaughter based on unreasonable self-defense. Furthermore, as established in Blakeley, unreasonable self-defense can now be found upon a mens rea of conscious disregard for life, as well as upon a finding of intent to kill.. The Blakeley concept of conscious disregard for life as an avenue under unreasonable self-defense to find voluntary manslaughter is not a pinpoint concept already made clear by the instructions. It sets forth an entirely new theory to reach voluntary manslaughter. It thus could not fairly be categorized as a pinpoint instruction that must be given only on request. If evidence supports the Blakeley theory of voluntary manslaughter, sua sponte instruction are required. Thus, even though Blakeley did not determine if sua sponte instructions were required, the law clearly requires sua sponte instructions on the theory of voluntary manslaughter based on unreasonable self-defense committed with a conscious disregard for life.
Here defendant claimed self-defense and unreasonable self-defense. He testified that he did not intend to kill Nieves. [Footnote 2] Substantial evidence supported the theory that defendant killed Nieves in unreasonable self-defense with a conscious disregard for life. Under Blakely, instructions were required to convey this form of voluntary manslaughter to the jury. Because Blakeley held that its holding is not retroactive as an unforeseeable judicial enlargement of the crime of voluntary manslaughter, the defendant here cannot properly be convicted of voluntary manslaughter based on this theory; defendant is entitled to an instruction conveying a theory of involuntary manslaughter based on unreasonable self-defense committed with a conscious disregard for life. Failure to so instruct constitutes error.
The Blakeley court applied the Watson (People v. Watson (1956) 46 Cal.2d 818, 836) test and found the instructional error not prejudicial. First, the court noted that the jury was instructed on the standard two theories of involuntary manslaughter, neither of which required an intent to kill. Voluntary manslaughter instructions, as given, required intent to kill. Thus, the Supreme Court concluded that if the jury had found that the defendant had unintentionally killed the victim in unreasonable self-defense, “it most likely would not have convicted defendant of voluntary manslaughter, which, it was told, requires an intent to kill.” (People v. Blakeley, supra, 23 Cal.4th at pp.93-94) Additionally, the Supreme Court pointed to closing arguments where the prosecutor and defense counsel each told the jury that an unintentional killing in unreasonable selfdefense was involuntary, not voluntary manslaughter. (Id. at p. 94.)
Unlike the Blakeley case, the jury here was not instructed on any theory of involuntary manslaughter and additionally was not instructed on the implied malice theory of second decree murder. [Footnote 3] The voluntary manslaughter instructions required an intent to kill. The jurv had no option other than acquittal if it found defendant did not have an intent to kill. Also, unlike Blakeley, there was no argument regarding the conscious disregard form of manslaughter. The jury was left with no choices or guidance whatsoever for a killing which was not intentional. Thus the circumstances which resulted in a finding of no prejudice in Blakeley are absent here.
Respondent argues that the killing was clearly murder because defendant fired the final shot when Nieves was on the ground, and thus any error was harmless. Although the evidence is susceptible to such an interpretation, the evidence also demonstrates that the three shots occurred within several seconds, with a third shot being fired one second after the second shot. From this, it would be reasonable for a properly instructed jury to conclude that defendant fired three rapid shots because he was in fear for his life, having nearly lost his life two days earlier at the bare hands of the same assailant. As noted in our earlier opinion, the facts of the killing are not incompatible with defendant’s testimony that he in good faith believed his life was threatened and took steps to protect himself. The record supported defendant’s testimony. To agree with respondent’s assertion and state that the killing here was clearly murder would be ignoring our earlier opinion finding reversible error in the manslaughter instructions based on substantially the same evidence. Defendant suffered prejudice here making the error reversible.
II.
Malice Instruction
Murder was defined to the jury pursuant to CALJIC No. 8.10 as follows: “The defendant is accused of having committed the crime of murder, a violation of Penal Code Section 187(a). [¶] Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder, violation of Section 187(a) of the Penal Code. [¶] A killing is unlawful if it was neither justifiable nor excusable. [¶] In order to prove this crime, each of the following elements must be proved: [¶] One, a human being was killed; [¶] Two, the killing was unlawful, and; [¶] Three, the killing was done with malice aforethought.” Immediately following this, CALJIC No. 1.22 was read to the jury. It provides: “The words malice and maliciously mean a wish to vex, annoy or injure another person or an intent to do a wrongful act.” This instruction of malice is legally incorrect and is not to be given in a murder case.
The jury was then given the standard instructions on express and implied malice, CALJIC No. 8.1 1, as follows: “Malice may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being [¶] Malice is implied when: [¶] One, the killing resulted from an unintentional act; [¶]Two, the natural consequences of the act are dangerous to human life, and; [¶] Three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [¶] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to
establish the mental state of malice aforethought. [1] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.”
Manslaughter was defined to the jury: “‘The crime of manslaughter is the unlawful killing of a human being without malice aforethought. It is not divided into degrees but is of two kinds, namely voluntary manslaughter and involuntary manslaughter.”(CALJIC No. 8.37.) We note that this instruction was incorrect because the court did not instruct on involuntary manslaughter.
Voluntary manslaughter was defined pursuant to CALJIC No. 8.40 as follows: “A lesser crime to that charged in the Information is the crime of voluntary manslaughter, a violation of Section 192(a) of the Penal Code. [¶] Every person who unlawfully kills another human being without malice aforethought but with an intent to kill is guilty of voluntary manslaughter in violation of Penal Code Section 192(a). [¶] There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief and in the necessity to defend oneself against imminent peril to life or great bodily injury. [¶] In order to prove this crime, each of the following elements must be proved: [1] One, a human being was killed;[¶] Two, the killing was unlawful, and; [¶] Three, the killing was done with the intent to kill. [¶] A killing is unlawful if it was neither justifiable nor excusable.”
Instructions explaining sudden quarrel or heat of passion followed, including what constitutes a cooling period and that no specific emotion alone constitutes heat of passion. (CALJIC Nos. 8.42, 8.43, 8.44.)
These instructions were followed by CALJIC No.8.50, which distinguishes murder and manslaughter as follows: “The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. [¶ When the act causing the death, though unlawful, is done in heat of passion or is excited by a sudden quarrel that amounts to adequate provocation or in the actual or unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that that act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, although unreasonable belief, in the necessity to defend against imminent peril to life or great bodily injury.”
The jury was then instructed that if it unanimously agreed the killing was unlawful and also agreed that there was a reasonable doubt whether the crime is murder or manslaughter, they must give the defendant the benefit of the doubt and find the crime to be manslaughter. This was followed by instructions on unanimous agreement as to whether the crime is second degree murder or voluntary manslaughter. (CALJIC No. 8.74)
Instructions on a justifiable homicide in self-defense were given. Included in this portion of the instructions, as compared to the portion of the instructions dealing with manslaughter, was the instruction describing voluntary manslaughter in the form of an actual but unreasonable belief in the necessity to defend. (CALJIC No. 5.17.)
Defendant claims that the giving of a legally incorrect definition of malice (CALJIC No. 1.22) lessened the People’s burden of proof and denied him the right to trial by jury and due process. Reversal is required, argues defendant, because the court gave both a legally correct and a legally incorrect version of instructions and the verdict does not clearly demonstrate that it rested on the correct version. Furthermore, defendant contends the evidence amply supports a voluntary manslaughter conviction.
While respondent agrees the incorrect instruction on malice was erroneously given, respondent contends that defendant waived the error by failing to object. “An objection is not always required in order to preserve an issue of instructional error for appeal.” (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074.) Pursuant to Penal Code section 1259, if the substantial rights of the defendant are affected, an appellate court may review instructions given, refused, or modified even in the absence of an objection. (45 Cal.App.4th at p. 1074.)
“An instruction plainly erroneous is not cured by a correct instruction in some other part of the charge.” (People v. Westlake (1899) 124 Cal. 452, 457.) The giving of CALJIC No. 1.22 in a murder trial has not been viewed as “plainly erroneous.” In People v. Dice (1898) 120 Cal. 189 the defendant was tried for murder. The jury was instructed that murder requires malice, followed by the same definition of malice contained in CALJIC No. 1.22 followed by instructions defining express and implied malice. (120 Cal. at pp. 201-202.) It was argued that the instruction was misleading confusing, and injurious. The Supreme Court disagreed. “We think the complaint unfounded. The court but instructed the jury as to the general import of the word ‘malice,’ and immediately and in the same connection specifically defined the word when used in the code as an element of the crime of murder.” (Id. at p. 202.) Dice was followed in People v. Waysman (1905) 1 Cal.App. 246, 248-249, with the exception that the Waysman court found it was error to give the instruction.
In People v. Chavez (1951) 37 Cal.2d 656, the Supreme Court followed Waysman and found that it was error to give the instruction but the error was not prejudicial. (See also People v. Powell (1963) 219 Cal.App.2d 389 [finding the instructional error was cured by giving full and proper instructions], and People v. Harris (1985) 175 Cal.App-3d 944 [finding, the error is universally held harmless].)
Defendant relies on People v. Shade (1986) 185 Cal.App.3d 711. CALJIC No. 1.22 was erroneously given in Shade’s murder trial. The Shade court classified the error as giving two definitions of malice, one legally incorrect and one legally correct. The appellate court found the error harmless because the evidence indicated that the conviction was based on the correct theory of malice and the evidence did not supporteither theory of voluntary manslaughter. But, the court made the following statement: “Voluntary manslaughter is the unlawful killing without malice. (Pen. Code, § 192, subd. (a).) It exists when the defendant acts out of a heat of passion or under the honest, but unreasonable, belief that it is necessary to defend himself from imminent peril to life or great bodily injury. [Citations.] The jury was so instructed. If malice is adjudged by the minimal standard of vexing, or annoying, a jury would be hard-pressed to find its absence. Thus, if the evidence supports voluntary manslaughter, the jury may have found malice and convicted defendant based on the incorrect definition.” (1 85 Cal.App.3d at p. 715.)
A literal application of Shade here tends to support a findin- of prejudice because the evidence supports a voluntary manslaughter conviction. The problem with the above quote from Shade is that the voluntary manslaughter instructions tell the jury that if there is heat of passion or unreasonable self-defense there is no malice aforethought. (Cf. dis. opn. of Moss, J., People v. Blakeley, supra, 23 Cal.4th at pp. 94-100.) Thus, if heat of passion or unreasonable self-defense is proved, malice is deemed to be absent; this being the case, the definition of malice becomes less critical to a voluntary manslaughter conviction; whatever definition is used, malice is absent if heat of passion or unreasonable self-defense is proved by the evidence.
This does not mean that the error has no effect. The concept of malice alone, as it relates to the distinction between murder and manslaughter, is complex. Thus, the giving of inapplicable instructions could lead to confusion on the part of the jury. While the error standing alone may be harmless, its prejudicial effect in combination with other errors requires reversal here.
Again, respondent’s claim the error is harmless (because the facts belie defendant’s claim that he was acting in self-defense or unreasonable self-defense) ignores our earlier opinion where we found that similar evidence at the first trial would have supported a voluntary manslaughter conviction, had the jury been properly instructed.
III
Self-defense Instructions
Defendant claims the trial court failed in its sua sponte duty to fully instruct on Self-defense. Such a failure lessened the People’s burden of proof and denied defendant his constitutional right to trial by jury and due process of law. Defendant points to three instructions the trial court failed to give.
The first instruction defendant claims was erroneously not given by the trial court is CALJIC No. 5.15, burden of proof recording justification or excuse. In People v. Banks (1976) 67 Cal.App.3d 379, the court held that, in addition to requiring the prosecution to prove the absence of heat of passion beyond reasonable doubt, the due process clause similarly requires “the prosecution must prove beyond a reasonable doubt the absence of justification … when the issue is properly presented in a homicide case.” (Id. at p.384.)
CALJIC No. 5.15 reflects this rule and states: “Upon a trial of a charge of murder, a killing is lawful, if it was [justifiable] [excusable]. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not [justifiable] [excusable]. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty.” Respondent claims the court did not err when it failed to give this instruction because the substance of the instruction was covered by other instructions, and the “absent instructions raise essentially the same matters considered by the instructions given.”
Respondent points to the following litany of instructions as sufficient to supplant CALJIC No. 5.15: “The jury had already been instructed as to the burden of proof and that a guilty verdict could not be returned unless it met the standard of beyond a reasonable doubt. (CALJIC No. 2.90 …. ) It was also instructed that conviction of the lesser crime was subject to the same burden of proof (CALJIC No. 17. 1 0 … ), that the standard is required as to each element if the prosecution is to prove murder instead ofvoluntary manslaughter (CALJIC No. 8.50 … ) and to give appellant the benefit of the doubt as to whether an unlawful killing amounted to murder or manslaughter. (CALJIC No. 8.72 ….)”
In addition to the proposition contained in CALJIC No. 8.50, cited by the People, this instruction also states that in order for the jury to return a murder verdict the People must prove beyond a reasonable doubt that the death was not done in the heat of passion or in the actual but unreasonable belief in the necessity to defend. This instruction informs that, in addition to the People being required to prove presence of certain elements (for example, the elements of murder), the People must also prove the absence of applicable partial defenses which would reduce the level of the crime (i.e., unreasonable self-defense reducing murder to manslaughter). Although the instructions as given clearly provided that the People must prove each element beyond a reasonable doubt, the jury was never told, in the context of a justifiable homicide, that the People must prove beyond a reasonable doubt the absence of justification. Having been instructed on the People’s burden in the context of voluntary manslaughter, the jury may have been confused on what the standard was for proving the absence of a justifiable homicide.
Respondent does not dispute that justifiable homicide was raised by the evidence. The burden of proof for disproving justifiable homicide is a general principle of law pertinent to this case. The trial court had a sua sponte duty to instruct on general principles of law raised by the evidence. (People v. Holt (1944) 25 Cal.2d 59, 64-65.) The trial court erred in failing to instruct the jury with CALJIC No. 5.15.
Other than an argument that other instructions covered the subject, respondent offers no discussion on the question of prejudice. “[A] constitutionally deficient reasonable doubt instruction is not amenable to a harmless error analysis and requires reversal per se.” (People v. Phillips (1997) 59 Cal.App.4th 952, 956; Sullivan v. Louisiana (1993) 508 U.S. 275, 278.) “We must be ever diligent to guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” (People v. Crawford (1997) 58 Cal.App.4th 815, 826.)
Here we are not faced with a complete failure to instruct on the reasonable doubt standard nor were misleading instructions given, but the absence of CALJIC No. 5.15 left the jury with no clear cuidance on how the burden of proof was to be allocated in province or disproving a justifiable homicide committed in self-defense. There is a danger the jury may well have believed the defense had the burden of persuasion on this question rather than the prosecution having the burden of proving the absence of justification beyond a reasonable doubt.
There was evidence here that defendant committed the murder in self-defense, particularly in light of the prior attack by Nieves upon defendant where defendant was unable to fight back combined with the threats made by Nieves to defendant. Certainly there is a question whether these prior actions by Nieves, combined with Nieves’s advancements toward defendant, justified the use of a gun in self-defense.
Next, defendant arcues the trial court erred in failing to instruct on when one need not retreat as contained in CALJIC No. 5.50. This instruction provides: “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of [his] [her] right of self-defense a person may stand [his] [her] around and defend [himself] [herself] by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge and a person may pursue [his] [her] assailant until [he] [she] has secured [himself] [herself] from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”
Defendant argues that without this instruction the jury may have incorrectly concluded defendant had a duty to run from Nieves when Nieves approached him withhis fists raised; the jury may have determined that self-defense was not be available to defendant because he was not in actual danger if he had an avenue of retreat.
Respondent claims the instruction need not be given because the question of whether defendant was required to retreat was never an issue.
CALJIC No. 5.50 has been categorized as one of the standard instructions on self defense. (People v. Spencer (1996) 51 Cal-App.4th 1208, 1211.) The trial court has a duty to instruct on general principles of law relevant to the issues raised by the evidence.
In People v. Pruett (1997) 57 Cal.App.4th 77, the appellant was outside a restaurant playing with a knife. The manager asked him to leave; he did not do so. The manager called the police. The police arrived and the manager told the officer that appellant had a knife. After initially complying with the officer’s request, appellant reached in his pocket and pulled out the knife. While appellant tried to open the knife, the officer sprayed him with pepper spray. Appellant opened the knife and advanced toward the officer, slashing the knife back and forth. He then gave up and threw the knife to the side. (Id. at pp. 80-8 1.) The jury was instructed on self-defense, but they were not instructed pursuant to CALJIC No. 5.50. The appellant cited this as reversible error on appeal. The appellate court disagreed. ‘We find no error in the trial court’s decision. No evidence was introduced that appellant considered retreating but chose not to do so or that appellant could have retreated but did not do so. Thus, an instruction on the right not to retreat was not required under the evidence presented.” (57 Cal.App.4th at p. 89.)
The facts in this case are very different from those in Pruett. Here, defendant’s shoes had been taken by Nieves. Two days earlier he had been violently attacked by Nieves and incapacitated to defend himself. Nieves had a reputation of being a bully. Nieves came to defendant’s house and threatened defendant and his famlily. Defendant approached Nieves and asked him to return his shoes. Nieves refused and lunged toward defendant with his fists up. Defendant had the time to step back and pull out his gun. He was in an open area near his home. Jurors may have speculated why defendant did not retreat to his house. They were never told that defendant had the right to stand his ground and defend himself. The jury was instructed that a person being attacked has the right to self-defense and to use all necessary force and means which he or she believes necessary to prevent the injury which appears imminent. (CALJIC No. 5.30.) While this instruction provides some guidance, it fails to discuss whether or not one must retreat to prevent injury. The facts certainly raised a possibility that defendant could have retreated or attempted to retreat. The jury should have been instructed pursuant to CALJIC No. 5.50 that defendant could appropriately stand his ground and did not have a duty to retreat.
Finally, defendant argues the trial court erred when it failed to instruct the jury pursuant to CALJIC No. 5.51. CALJIC No. 5.51 states: “Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in [his] [her] mind, as a reasonable person, an actual belief and fear that [he] [she] is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing [himself] [herself] in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.”
CALJIC No. 5.12 was given in this case, and it provides: “The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [¶] 1. That there is imminent danger that the other person will either kill [him] [her] or cause [him] [her] great bodily injury; and [¶] 2. That it is necessary under the circumstances for [him] [her] to use in self-defense force or means that might cause the death of the other person, for the purpose of avoiding death or great bodily injury to [himself] [herself]. [¶] A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one’s self from death or great bodily harm.”
Citing People v. Mayfield (1997) 14 Cal.4th 668, respondent argues that CALJIC No. 5.51 is superfluous when CALJIC No. 5.12 is given.
While Mayfield did hold that CALJIC No. 5.51 is superfluous when CALJIC No. 5.12 is given, the Mayfield court was reviewing the 1979 revision of CALJIC No. 5.12. It provided: “‘The killing of another person in self-defense is justifiable and not unlawful: [¶] 1. When the person who does the killing has reasonable ground to believe and does believe that there is imminent danger that the other person will kill him or cause him great bodily injury, and [¶] 2. A reasonable person under the same circumstances would believe that it was necessary to kill the other person to prevent death or great bodily injury to himself. [¶]1 In order to justify killing another person in self-defense, actual danger or great bodily injury is not-necessary. On the other hand, a bare fear of death or great bodily harm is not sufficient. [¶] In order to justify a killing it must be established: [¶] 1. The circumstances must be sufficient to excite the fears of a reasonable person that there was imminent danger of death or great bodily injury, and [¶] 2. The party killing must have acted under the influence of such fears alone and under the belief that such killing was necessary to save himself from death or great bodily injury.”‘ (People v. Mayfield, supra, 14 Cal.4th at p. 780, italics added.)
The 1979 version of CALJIC No. 5.12 stated in plain language that actual danger is not necessary in order to justify killing another person in self-defense. Because the court in Mayfield was analyzing a different version of the instruction, its analysis does. not apply here. The version of CALJIC No. 5.12 given here, while alluding to the concept that actual danger is not required, does not clearly set forth this principle. CALJIC No. 5.51 makes the concept much more understandable.
The trial court erred in failing to give each of the three instructions (CALJIC Nos. 5.15, 5.50 and 5.51).
IV.
Effective Assistance of Counsel
Defendant claims he was denied the effective assistance of counsel at trial. Defendant’s trial counsel, Mr. Smith*, also represented defendant during his first trial and in his mistrial. In his first appeal, numerous instances of ineffective assistance of counsel were raised. We did not reach these issues because the judgment was reversed based on instructional error. Defendant raises numerous instances of ineffective assistance of counsel in this appeal.
Standard of review.
“[A] defendant claiming ineffective representation ‘must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” [Citations.]’ Because after a conviction it is all too easy to criticize defense counsel and claim ineffective assistance, a court must eliminate the distorting effects of hindsight by indulging ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citations.]’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 158.)
1. Consenting to discharge of the jury in defendant’s first retrial
Defendant’s first retrial after reversal of his conviction on appeal resulted in a mistrial. During the deliberations in the first retrial, the jury sent out a note that stated
“We the jury are deadlocked at eleven to one. It does not seem we will be able to agree 100%. Please advise.”
The jury was brought into the courtroom. The court stated that it had not instructed the jury previously on the possibility of returning a partial verdict. The trial court then instructed the jury pursuant to CALJIC No. 17.12, which states in pertinent part that the jury may return a partial verdict unanimously acquitting the defendant of a greater crime yet failing to reach a unanimous verdict on a lesser charge. [Footnote 4]
After instructing the jury, the following occurred:
“[THE COURT:] Do you feel that by further deliberations you might be able to reach some verdict on the charged crime yet not be able to reach a verdict as to the lesser crime?
“THE JUROR: That would be a true statement.
“THE COURT: You feel you could possibly?
“THE JUROR: Right. We have five or six that I feel will not change their position of the 11. We are not going to unanimously go to–
“THE COURT: Agree either way?
“THE JUROR: Right.
“THE COURT: Now, before I can discharge you, I have to find out if each of the other jurors agree with the foreperson.
“Foreperson has indicated to me, ladies and gentlemen, that there is no reasonable possibility of the jury reaching a verdict in this case at this point even with further instructions or explanation as to the law, further read back of testimony or further deliberations. If you agree with what the foreperson has told me, say yes. If you do not agree with the foreperson, say no.”
The jury was polled, and each juror said yes. The trial court then stated:
“THE COURT: Mr. Smith, I’m inclined to grant a mistrial at this time or declare a mistrial at this time. Do you have any objection to that?
“MR. SMITH: [defense counsel]: No, I don’t.
“THE COURT: There is no objection?
“MR. SMITH: No objection.
“THE COURT: Miss Krech?
“MISS KRECH [prosecutor]: No objection.
“THE COURT: At this time, ladies and gentlemen, you have completed your service as jurors in this case. I’m going to declare a mistrial.”
“When a jury indicates it is unable to reach a verdict, double jeopardy rules bar retrial unless the defendant consents to the discharge of the jury (People v. Compton (1971) 6 Cal.3d 55, 62-63 … [defendant’s mere silence is not consent to declaration of mistrial]), or the trial court determines further deliberations are not reasonably likely to result in a verdict (§ 1140), in which case legal necessity exists for a declaration of mistrial (Arizona v. Washington [(1978) 434 U.S. 497, 503-505]).” (People v. Marshall (1996) 13 Cal.4th 799, 825.)
Defendant claims his counsel should not have agreed to a mistrial because the discussion between the trial court and the foreperson disclosed the possibility that the jury could reach a verdict on second degree murder. If so, defendant asserts the trial court did not have legal necessity to declare a mistrial when it did so. If the trial court dismissed the jury without legal necessity, a claim of double jeopardy would bar retrial. Because counsel consented to the discharge, double jeopardy could not properly be raised. Defendant contends that competent counsel would have, at a minimum, requested further clarification of the muddled exchange between the trial court and the foreperson.
Respondent contends the questioning of the jury established there was no possibility the jury could reach a verdict with further instructions or deliberations. Respondent argues the court in People v. Marshall, supra, 13 Cal.4th 799, 825, rejected the argumemt now made by defendant. Because, respondent asserts, the discharge of the jury occurred based on legal necessity, defendant’s counsel could not have been incompetent for stipulating to a mistrial.
Because defendant did not enter a plea of once in jeopardy prior to his third trial, the issue of double jeopardy is not technically cognizable on appeal. But, defendant’s claim is that his attorney was ineffective; we review this contention to determine its merit. (People v. Marshall, supra, 13 Cal.4th at p.824, fn. 1.)
In People v. Marshall, the jury in Marshall’s first trial indicated it was deadlocked seven to acquit and five to convict. The jury was told to continue to deliberate. It did. After a third ballot with no chance in position, the trial court asked if further deliberations would be useful. The Jury indicated no, and the trial court declared a mistrial. “At no time did the trial court inquire whether the jury was able to reach a partial verdict of acquittal on any of the charged offenses, nor did the jury hint at such a possibility.” (13 Cal.4th at p. 824.) Relying on the rule of Stone v. Superior Court (1982) 31 Cal.3d 503, the defendant in Marshall claimed that the mistrial was without legal necessity and placed him twice in jeopardy. The California Supreme Court in Marshall summarized its holding in Stone:
“Stone, supra, 31 Cal.3d 503, like this case, involved a homicide prosecution in which the jury was instructed on the charge of murder and uncharged lesser included offenses. The jury in Stone deliberated for seven days, but was unable to reach a unanimous verdict within the options presented to it. [Citation.] The prosecution and defense stipulated to an inquiry to determine the jury’s position. The foreman reported in open court that no jurors voted for either first or second degree murder, four voted for voluntary manslaughter, two voted for involuntary manslaughter, six voted for justifiable homicide, and none voted for acquittal. [Citation.] Each juror expressed the opinion the jury was hopelessly deadlocked and further deliberations would not yield a verdict. [Citation.] The defense moved the court to accept a verdict of acquittal on the offenses of first and second degree murder. Noting no established procedure existed for such a partial verdict, the trial judge denied the motion and ultimately declared a mistrial. [Citation.] Defendant sought a writ of prohibition to prevent retrial. [Citation.] We concluded the trial court should have received the jury’s verdict on first and second degree murder, and prospectively held as follows: ‘[I]n all cases in which the jury has not yet begun deliberations as of the date this decision becomes final, the trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense. Failure to do so will cause a subsequently declared mistrial to be without leoal necessity.’ [Citation.]” (People v. Marshall, supra, 13 Cal.4th at p. 825.)
Marshall sets forth the following rule: “Absent some indication of deadlock only on an uncharged lesser included offense, the suggested procedures in Stone do not come into play. If the jury, in announcing apparent deadlock, gives such an indication, or if counsel so requests, the trial court, under Stone, should inquire further and determine whether any offenses can be eliminated.” (People v. Marshall, supra, 13 Cal.4th at p. 826, fn. omitted.)
The Supreme Court concluded: “In the present case, the trial court conducted a sufficient inquiry before declaring a mistrial. Nothing in the jurors’ comments hinted they had agreed to acquit defendant of first degree murder and were in disagreement only on lesser included offenses. Moreover, neither the evidence in this case nor the defense proffered supports an inference of partial acquittal on a greater offense. We conclude the mistrial was a matter of legal necessity, and therefore reject defendant’s claim of double jeopardy.” (People v. Marshall, supra, 13 Cal.4th at pp. 826-827.)
Contrary to respondent’s position that Marshall refutes defendant’s argument, Marshall in fact supports defendant’s argument.
Here, the jury was not preinstructed on the subject of returning a partial verdict. After indicating a deadlock and after the jurors received instruction on returning a partial verdict, the court asked if they might be able to reach some verdict on the charged crime, yet unable to reach a verdict on the lesser crime. The foreperson said that was a true statement. The court went on, “You feel you could possibly?” The foreperson said, “Right,” and then started to explain. The trial court interrupted the foreperson without allowing the foreperson to complete his explanation. After the trial court stated it had determined that, based upon the comments of the foreperson, there was no reasonable possibility of the jury reaching “a verdict,” the trial court asked the jurors if they agreed with what the foreperson had told it. The jury was polled and unanimously replied yes. We note the foreperson twice stated that continued deliberations might resolve the greater offense yet not cause the jury to “reach a verdict” on the lesser. The trial court in its questioning implied a difference between “some verdict’–unanimous agreement on the greater offense–and “a verdict”–unanimous agreement on a lesser offense. The trial court got the jurors to agree there was no reasonable possibility of reaching “a verdict.” However, because the jurors’ agreement with the foreperson could reasonably be construed to include that they could reach some verdict given further deliberations; it would also be a reasonable interpretation to find that the jury believed the court’s question, whether they could reach a verdict, was directed to whether they could unanimously reach a complete verdict. Thus, not only did the trial court err in failing to conduct a further adequate inquiry after the jury indicated it might be able to reach a partial verdict of acquittal on the second degree murder charge, there could be no tactical purpose for counsel to not seek clarification of the muddled exchange between the court, the foreperson, and the jury.
The trial court’s discharge of the jury without seeking clarification and counsel’s failure to seek clarification make it difficult for us to assess prejudice. We cannot say on this state of the record that the jurors would actually have acquitted defendant of the greater charge; the foreperson only indicated that was a possibility. The trial court’s actions and counsel’s inaction deprived defendant of any opportunity to demonstrate prejudice concretely.
We cannot here say that counsel’s failure to object to the discharge of the jury, standing, alone, affected the verdict. It is true that, had counsel objected, defendant may have been acquitted of second degree murder and faced only retrial for manslaughter. Additionally, unlike in Marshall, and as stated in our opinion concerning the earlier appeal, there was sufficient evidence to support a verdict for the lesser included offense of manslaughter. While this conduct of counsel standing alone does not establish prejudice, this particular conduct bears significant weight in the discussion of cumulative error and on the question of whether defendant was deprived of the effective assistance of counsel.
2. Instructions on antecedent threats
Defendant contends his counsel erred in failing to request any pinpoint instruction regarding antecedent threats and/or assaults which had a bearing on reasonable and unreasonable self-defense. Defendant notes that the prior facts and actions of Nieves against defendant was the crux of his defense. Defendant reasons that because it would have been reversible error for the trial court to deny a defense request for an instruction regarding antecedent threats and/or violence, it follows that it was reversible error for trial counsel not to have requested such an instruction.
Respondent replies: “In the present case, counsel’s decision not to ask for pinpoint instructions regarding earlier threats made by the victim could not have been prejudicial. The jury was well aware that the victim was portrayed as a mean man who threatened appellant and his family. The case turned on whether appellant was in fear of immediate bodily harm or at least thought that such was the case. The circumstances of the shooting, belied this defense.”
Again, respondent’s repeated assertion that the circumstances of the shooting “belied this defense” disregards entirely our previous opinion where we found the evidence was sufficient to support the defense.
Somehow both appellate counsel neglect to discuss that an instruction on antecedent threats was given as follows: “Evidence has been received that the defendant was aware of violent acts or threats by the deceased. If you find this evidence to be true it may be considered by you to prove the actual belief requirements of self-defense.”
There is nothing in the record to demonstrate if the court gave this instruction sua sponte, if it was requested by the People, or if it was requested by defendant.
This instruction is flawed for failure to include language that evidence of Nieves’s assaultive nature and prior attacks on defendant could be considered in determining whether defendant had an actual but unreasonable belief in the need to defend himself; it referred only to the actual belief requirements of self-defense. The instruction may have caused the jury to conclude it should consider the evidence of antecedent threats and/or violence on the question of pure self-defense, but it could not consider this evidence on the question of unreasonable self-defense. “”‘[A] defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind ….'”‘” (People v. Spencer (1996) 51 Cal.App.4th 1208, 1220.) “It is well settled a defendant asserting self-defense is entitled to an instruction on the effect of antecedent threats or assaults by the victim on the reasonableness of defendant’s conduct.” (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664.) “Even if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) An antecedent threat instruction may also state that a person previously threatened or attacked is justified in acting more quickly and more harshly. (People v. Bush (1978) 84 Cal.App.3d 294, 302-303.) Such an instruction could only have benefited defendant here as it fit closely with the facts.
If the issue is waived because defense counsel did not request an appropriate clarifying instruction (see People v. Andrews (1989) 49 Cal.3d 200, 218), then the issue is one of ineffective assistance of counsel. The threats and violent behavior of Nieves were crucial to the defense and this was a viable defense. In a case such as this, we cannot conceive of a tactical reason not to request an amplified and correct instruction on antecedent threats and violence on the question of unreasonable self-defense. This error certainly carried a serious potential for prejudicing the defendant. We note that this precise issue was raised in defendant’s first appeal. It was not discussed in the opinion because another error was dispositive of that appeal. We believe competent and diligent trial counsel would have reviewed the first trial and the first appeal to adequately represent defendant on retrial.
3. Failure to request CALJIC Nos. 5.15, 5.50, and 5.51.
These arguments merely repeat arguments made earlier, only now they are made in the context of ineffective assistance of trial counsel. Respondent does not posit any tactical reasons why defense counsel would not have requested these instructions. As previously set forth, the trial court erred in failing, to give CALJIC Nos. 5.15 and 5.50 sua sponte. Even if the instructions were not required sua sponte, they were concepts openly connected to the facts of the case and would have only benefited the defendant and it would have been ineffective assistance of counsel to not request them.
While CALJIC No. 5.12 obliquely conveys the notion that actual danger is not required, CALJIC No. 5.51 sets forth the concept in plain and understandable language. We cannot say that failure to request CALJIC No. 5.51 rises to the level of ineffective assistance of counsel; this failure does however reflect counsel’s lackadaisical performance regarding instructions as a whole.
Concerning a matter not raised by counsel on this appeal, we notice that the unreasonable self-defense instruction was not included during the instructions on manslaughter but was mixed in with the instructions relating to pure self-defense. This followed the numerical sequence where the instruction is found in the CALJIC instructions. “The general rule is that the order in which instructions are given is immaterial.” (People v. Carrasco (1981) 118 Cal.App.3d 936, 942.) “”The sequence in which instructions are given is a matter in the sound discretion of the trial court, and a very strong showing of prejudice must be made before a reviewing court will hold its discretion abused.”‘ (Ibid.) This court recognized “the obvious fact that the sequence of instructions can, in some instances, result in confusion.” (Id. at p. 943.) We criticized the instructional sequence in Carraso, noting the instructions were given in numerical order and stating “this might commend itself to a mathematician, but few others. The editors of CALJIC surely never intended such a ritualistic use of their system of numeration.” (Id. at p. 944.) In People v. Visciotti (1992) 2 Cal.4th 1, the court stated: “Although the general rule is that the order in which instructions are given is immaterial and is left to the sound discretion of the trial court [citations], we have reviewed the order in which the instructions were given in this case and are satisfied that the order was logical and that no confusion was reasonably possible. [Citation.]” (Id. at p. 61.)
Here the unreasonable self-defense instruction was not read in the portion of the instructions relating to manslaughter. It was given with the self-defense instructions, which referred to the reasonable person standard and included instructions clearly not applicable to unreasonable self-defense. This order creates a potential for confusion, and we render this comment to assist the parties on remand.
4. Failure to request involuntary manslaughter instructions.
As previously set forth, the trial court erred in failing, to instruct on the conscious disregard form of voluntary manslaughter. As noted in Blakeley, three decisions by the Court of Appeal had held that an unintentional killing in unreasonable self-defense may be involuntary manslaughter. (People v. Blakeley, supra, 23 Cal.4th at p. 92.) Counsel is charged with the duty to investigate the facts of his client’s case and to research the applicable law. (People v. Ledesma (1987) 43 Cal.3d 171, 221.) Counsel should have requested such an instruction.
5. Failure to object to incorrect malice instruction.
Although it was the trial court’s error to instruct pursuant to CALJIC No. 1.22, counsel should have objected to the improper instruction. The error was clear on its face and the effect of such an instruction, if any, could only have inured to defendant’s detriment. It should be noted that at defendant’s second trial the trial court rejected the People’s request to give CALJIC No. 1.22 because it could cause confusion. Defense counsel was present at this conference and should have recognized the error the next time around. Also, the use notes following this instruction state it should not be used in a homicide case. (Use Note, CALJIC No. 1.22 (6th ed. 1996) p. 25.)
6. Failure to elicit testimony elicited at prior trials.
As further evidence of counsel’s failure to provide effective assistance of counsel to defendant, defendant points to the following examples of testimony elicited at prior trials that counsel did not elicit at this trial: “For example, Rodriguez testified at appellant’s first trial that appellant shot Nieves out of desperation, and that if appellant had not shot him, Nieves would have killed appellant…. No such testimony was elicited at appellant’s third trial. [¶ Appellant testified at his first trial that he was unable to sleep Sunday night because he was afraid that Nieves would return with a big stick and knock down the door…. Appellant worked Monday and Tuesday but felt continuous stress and fear…. Appellant sometimes heard voices and bad words in his head, as he had on the day he shot Nieves…. Appellant testified at his second trial that he had never before fired a gun….”
Although it appears that the above testimony would be beneficial to defendant’s position, defense counsel may have thought that further examination of Rodriguez or defendant would raise additional questions. On the record before us, this cannot be viewed as ineffective assistance of counsel.
We note that at the first trial defendant’s father testified that he allowed Nieves to live at their home because he had been kicked out of a former house and because they knew him. Defendant’s father did not testify at this trial. In her closing argument, the prosecutor emphasized over and over again the question of why would defendant and his family allow Nieves to live with them when he was such a horrible person. Without the testimony of the father, there was no answer to this question repeatedly emphasized by the prosecutor.
7. Failure to secure translation of defendant’s statement made to police in Spanish.
Defendant was interviewed at the police station. His statement was given in Spanish. In his first appeal, an issue was raised regarding the effective assistance of defendant’s counsel, Mr. Smith, because he failed to secure an independent translation of defendant’s statement. In our first opinion, we did not reach this issue of ineffective assistance of counsel but noted two problems with the translation prepared by the People. Deputy Crespo testified at the first trial that he asked defendant if, when he bought the gun, he intended to kill Nieves. Crespo testified that defendant nodded his head up and down vigorously. A review of the taped statement indicated that Crespo did not ask this question. Also, a review of the transcript by a certified interpreter hired by defense counsel on his first appeal showed that in his opinion “both Deputy Crespo and the person who originally transcribed the tape misinterpreted the Spanish phrase ‘me las vas a pacar’ as meaning ‘pay me back.’ This phrase was used by Nieves just before he was shot. According to the interpreter, culturally in Spanish the phrase means ‘you’ll pay for this’ or ‘I’ll get you for this’ and is commonly understood as a threat.”
At defendant’s second trial (the mistrial) the People indicated they would be introducing defendant’s statement only through the testimony of Crespo but the People were not going to play the tape nor submit the transcript. Defendant’s counsel, Mr. Smith, indicated that the People’s transcript of the interview with defendant covered only one side of the tape. He had someone review both sides of the tape and felt capable of responding without having a complete transcript. The trial court warned defense counsel that if counsel sought to introduce other portions of the taped statement in his questioning of Deputy Crespo he would be required to have a transcript of those portions.
When defendant attempted to cross-examine Crespo regarding defendant’s statement, the People objected because defense counsel was using the People’s transcript, which, due to the problems pointed out in his appeal, the People would not agree to be an accurate transcription. The court questioned defense counsel if his independent interpreter translated the tape into a transcript. Defense counsel said no. The trial court reminded defense counsel the Rules of Court disallowed use of the tape without a transcript and would not allow defendant to question Crespo any further on portions of defendant’s statements which had not been accurately transcribed. Defense counsel did not attempt to question Crespo further using portions of defendant’s statements.
At defendant’s third trial, the district attorney again indicated she was not going to introduce the taped statements, citing the questionable accuracy of the transcript as pointed out in defendant’s first appeal. The district attorney stated it was her understanding defense counsel did not have a transcript prepared of defendant’s statement and that the district attorney would not agree to the use of the People’s transcript to cross-examine any witnesses. Defense counsel indicated he had no problem with what the district attorney requested. The cross-examination of Crespo at the third trial was extremely brief.
Defendant claims error as follows:
“It is difficult not to be aghast at counsel’s stubborn determination not to have the tape transcribed so that he could use it to cross examine Crespo. It quite simply ‘boggles the mind’ that any attorney would go to trial once, let alone three times, without be[ing] totally familiar with his client’s statement to the police and taking whatever steps were necessary to be able to effectively cross-examine the officer who took the statement.
“The only lesson Smith appeared to learn from his problems in the first retrial was that he would not even attempt to cross examine Crespo about anything, that he had not testified to in his direct examination…. It is beyond cavil that no competent attorney would attempt to defend a client against any criminal charge, let alone a murder charge, without being completely familiar with any statement his client had given to the authorities.
“If, as in this case, the interview was in another language, counsel providing effective legal assistance would have secured a copy of the tape and the prosecution’s English translation, and would then have secured an independent translation of the tape. Mr. Smith’s failure to do so manifestly meets the first prong for proving ineffective assistance of counsel, i.e., his performance fell well below an objective standard of reasonableness.”
Defendant does not attempt to show prejudice from the error.
“Counsel’s first duty is to investigate the facts of his client’s case and to research the law applicable to those facts.” (People v. Ledesma, supra, 43 Cal.3d at p. 222.) The record supports a finding that defense counsel was ineffective in the first trial in failing to obtain an independent translation of defendant’s statements in order to correct misstatements made by Crespo and contained in the People’s transcript. Counsel’s ineffectiveness was shown in the second trial when he again failed to have an independent transcription and was precluded from cross-examining Crespo regarding defendant’s statements when he clearly sought to do so.
In the third trial, the record does not affirmatively show that defense counsel did not have an independent transcription. The questioning of Crespo by the People and defense counsel was very limited, but it cannot be said that the reduced questioning was due to ineffective assistance of counsel and not based on a tactical decision.
We do, however, consider this claim to the extent it illustrates a pattern of ineffective assistance of counsel.
7. Cumulative error.
Defendant asserts that cumulative error requires reversal.
“Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. (Cal. Const., art. VI, § 13; see also Chapman v. California (1967) 386 U.S. 18, 24 … [harmless-beyond-areasonable-doubt standard applies to review of federal constitutional error].) Nevertheless, a series of trial errors, thoug-h independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (People v. Purvis [(1963) 60 Cal.2d 323, 348, 353] [combination of ‘relatively unimportant misstatements of fact or law,’ when considered on the ‘total record’ and in ‘connection with the other errors,’ required reversal]; People v. Herring [(1993) 20 Cal.App.4th 1066, 1075-1077] [cumulative prejudicial effect of prosecutor’s improper statements in closing argument required reversal]; see In re Jones (1996) 13 Cal.4th 552, 583, 587 …] [cumulative prejudice from defense counsel’s errors requires reversal on habeas corpus]; (People v. Hill (1998) 17 Cal.4th 800, 844-845.)
The errors here are numerous. First, the trial court erred in failing to instruct the jury that manslaughter may include an unintentional killing based on unreasonable self-defense. Similarly, counsel for defendant failed to request such an instruction even though appellate cases had established such a crime and the facts supported the instruction. In addition, the trial court failed to instruct that manslaughter includes an unintentional killing based on heat of passion.
The trial court cave an erroneous malice instruction. Defense counsel did not object.
The trial court failed to give the burden of proof instruction regarding self-defense. (CALJIC No. 5.15.) Counsel did not object to this failure nor did he request such an instruction.
The trial court failed to give an instruction regarding that there is no duty to retreat. (CALJIC No. 5.50.) Counsel did not object to this failure nor did he request such an instruction.
Counsel failed to request an instruction which clearly conveyed the concept that actual danger is not required before one acts in self-defense. (CALJIC No. 5.51.)
The trial court instructed the jury that manslaughter is of two kinds, voluntary and involuntary, yet involuntary manslaughter was not an option given to the jury. Counsel did not seek to correct this instruction.
The trial court found that the facts could support an implied malice theory of murder and instructed the jury on the concept of implied malice yet no such theory was offered as a choice to the jury. The record is void of any comments by defense counsel regarding these instructions or lack thereof.
The unreasonable self-defense manslaughter instruction was presented in a confusing sequence. The trial court did not recognize the potential confusion and counsel did not object to the order of instructions.
The trial court did not properly investigate the “hung jury” in defendant’s mistrial. In a situation clearly calling for clarification, defense counsel acceded to a mistrial thus waiving all claims of error, including the claim of double jeopardy.
The antecedent threat instruction did not clearly convey that the jury could consider the violent action and threats of the victim in determining whether defendant acted in unreasonable self-defense, nor did the court include anything telling the jury that the defendant in such a situation could act more quickly and more harshly. Defense counsel did not object to the instruction nor did he request an amplified and correct instruction.
Defense counsel in the first two trials, and possibly the third trial, did not obtain an independent translation of defendant’s statement to police. This was ineffective assistance of counsel in the first two trials, suggesting a pattern.
In a pretrial Marsden motion prior to his third trial, defendant complained that his counsel had not called enough witnesses to testify regarding Nieves’s violent character traits. Two of these witnesses lived in Las Vegas. Defense counsel indicated he thought defendant’s case would trail so he had not subpoenaed these witnesses yet, and he probably should have because counsel believed it would help defendant’s case. The trial court denied the motion. Shortly thereafter, in open court when the prosecutor questioned which witnesses defense counsel intended to call, defense counsel indicated he had never spoken to the Las Vegas witnesses. During trial, defense counsel drove to Las Vegas himself and returned with one of the witnesses. Because the witness was present at trial, prejudice cannot be shown from counsel’s not investigating these potential witnesses, who he thought would help defendant’s case. But, these actions of defense counsel are further evidence of counsel’s inadequate preparation.
We note that during the first appeal this court reported defense counsel Smith to the State Bar to investigate assertions regarding defense counsel’s failure to provide his former client the entire case file. (People v. Sandoval (March 2, 1998) F024536.)
This case does not present the typical record where the presumption of competency should prevail. The link of incompetency from one trial to the next to the next permeated every proceeding. In each trial the representation of defendant faltered.
As stated in the earlier opinion, the evidence here would support a manslaughter conviction. This is not a case, as respondent continually promotes, where the evidence belies a manslaughter conviction. In the face of the evidence, the errors which occurred have a much greater potential for prejudice.
When considering the errors and inadequacies together, we conclude that “defendant was deprived of what the state was constitutionally required to provide and he was entitled to receive: a fair trial.” (People v. Hill, supra. 17 Cal.4th at p. 847.)
DISPOSITION
The judgment is reversed. Defendant’s request for judicial notice of our file in defendant’s first appeal, case No. F024536, is granted. In any proceedings following the reversal and remand of this case, due to the numerous problems cited in this opinion, we direct the trial court to appoint new and different counsel to represent defendant. In any jury trial resulting from this remand, the trial court shall instruct the jury consistent with the principles stated in this opinion.
VARTABEDIAN, J.
WE CONCUR:
ARDAIZ, P.J.
LEVY, J.
FOOTNOTES:
Footnote 1: In addition, he was charged with a firearm enhancement. This enhancement is not relevant to any of the issues raised on appeal. There were no further enhancements alleged.
Footnote 2: Defendant also claimed heat of passion applied to his case. This theory is not discussed on appeal and it therefore does not require further discussion except to note that in People v. Lasko (2000) 23 Cal.4th 101, 104, the California Supreme Court found that voluntary manslaughter includes a person acting with conscious disregard for life and knowing that the conduct endangers the life of another unintentionally but unlawfully kills in a sudden quarrel or heat of passion. (Ibid.) Thus, the heat of passion instructions given here, which required an intent to kill, were also erroneous.
Footnote 3: Neither party has addressed this atypical lack of instructions.
Footnote 4: The trial court did not read directly from CALJIC No. 17.12, but instead read some parts and paraphrased others.
