THE PEOPLE, Plaintiff and Respondent, v. VICTOR GARCIA, Defendant and Appellant.
No. B194186
Court of Appeal, Second District, Division Seven, California
January 22, 2008
159 Cal. App. 4th 18
CERTIFIED FOR PARTIAL PUBLICATION
OPINION
Victor Garcia struck Aristeo Gonzalez in the face with the butt of a shotgun, causing Gonzalez to fall, hit his head on the sidewalk and die. Could a jury find Garcia guilty of involuntary manslaughter, rather than second degree murder or voluntary manslaughter, based on Garcia‘s testimony he hit Gonzalez in an automatic response to Gonzalez‘s lunge at the shotgun and did not aim for Gonzalez‘s face and did not intend to kill the man? An unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter. Because an assault with a deadly weapon or with a firearm is inherently dangerous, the trial court properly concluded the evidence would not support Garcia‘s conviction for involuntary manslaughter and, therefore, did not err in declining to instruct the jury on involuntary manslaughter as a lesser included offense of murder. We affirm the judgment, modified only to correct a clerical error as to Garcia‘s sentence.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of March 6, 2005, after arguing with his girlfriend, Cynthia Ramos, Garcia drank a quantity of beer and inexpensive fortified wine. While walking toward Yoly‘s Market in East Los Angeles to purchase additional wine, Garcia encountered Rafael Barajas and Juan Avila. Garcia, who was holding something shiny in his left hand (a handgun), struck Avila with his right hand near Avila‘s left eye. Avila fell to the ground, got up and ran to his home. Garcia apparently walked back to Ramos‘s home, where he again argued with her, and then left, carrying a shotgun.
A short while later Barajas, who had continued to Yoly‘s Market, saw Garcia enter the store as he was leaving. Garcia was carrying the shotgun.
Garcia was confronted by Gonzalez, who told Garcia to put the gun away. Garсia ordered Gonzalez to shut up and to mind his own business. The two men yelled at each other, and Gonzalez moved toward Garcia (“lunged” at him, according to Garcia). Garcia struck Gonzalez with the butt of the shotgun to back him up. Although Garcia testified he did not aim at a specific spot, the gun hit Gonzalez in the face. Gonzalez fell to the sidewalk and hit his head, which began to bleed profusely. Gonzalez subsequently died from craniocerebral injuries due to blunt force head trauma. His skull was fractured on the left side of his head, and he had suffered a “rather large” laceration on his upper lip, apparently where he had been struck by the gun. A postmortem toxicology examination revealed Gonzalez had a 0.31 percent blood-alcohol level at the time of his death.
Barajas saw Gonzalez bleeding on the ground. When he tried to help him, Garcia pointed the shotgun at Barajas‘s back and asked if he “wanted to be dead as the person who was lying there.” Garcia then left the scene. As he walked away, Garcia raised his shotgun and pointed it at Juan Arellano, who had been driving nearby and had slowed down to see if he could provide some assistance.
Garcia was charged in an amended information with the murder of Gonzalez, assаult with a firearm and assault with a deadly weapon upon Avila, assault with a firearm on Barajas, assault with a firearm on Arellano and several additional aggravated assault counts identifying as victims two individuals who had encountered Garcia after he left the site of the shooting. Firearm enhancements were also alleged.
The jury found Garcia not guilty of murder but guilty of voluntary manslaughter as to Gonzalez (count 1) and found true the related firearm enhancement. Garcia was also convicted of assault with a firearm on Avila (count 2) and Arellano (count 5) with true findings on the firearm enhancement allegations; he was found not guilty on all оther charges. The trial court sentenced Garcia to an aggregate state prison term of 25 years eight months: the upper term of 11 years for voluntary manslaughter plus a consecutive upper term of 10 years for the gun use enhancement, plus consecutive terms of two years four months (one-third the middle term of three years for assault
CONTENTIONS
Garcia contends the trial court committed prejudicial error in failing to instruct the jury on involuntary mаnslaughter as a lesser included offense of murder. He also contends the trial court‘s imposition of the upper term sentence for voluntary manslaughter based on factual determinations made by the trial judge, not the jury, violated his federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely).
DISCUSSION
1. The Trial Court Properly Denied Garcia‘s Request to Instruct the Jury Regarding Involuntary Manslaughter As a Lesser Included Offense
a. Standard of review
“Generally, involuntary manslaughter is a lesser offense included within the offense of murder.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) Instructions on lesser included offenses must be given when there is substantial evidence for a jury to conclude the defendant is guilty of the lesser offense but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 177; People v. Birks (1998) 19 Cal.4th 108, 118-119.) Substantial evidence is defined for this
b. The trial court‘s instructions on murder and manslaughter
In his statement to the police following his arrest and again when testifying in his own defense at trial, Garcia, who claimed he was intoxicated at the time, explained Gonzalez had lunged toward him and sаid he thought Gonzalez was going to try to fight him and was concerned Gonzalez would take the gun. Garcia said he “just reacted” and insisted he had jabbed or swung at Gonzalez to back him up. He did not intend to hit Gonzalez in the face and “never intended to kill him or for him to die.”
Garcia was charged with second degree murder. The People tried the case on a theory of implied malice; and the trial court instructed the jury, using the appropriate CALJIC jury instruction, that to prove the crime of murder, the People had to establish the killing of Gonzalez was unlawful and “done with malice aforethought,” which may be either express or implied. The cоurt defined implied malice in the language of CALJIC No. 8.11, “Malice is implied when: 1. The killing resulted from an intentional act; 2. The natural consequences of the act are dangerous to human life; and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” The court also explained, “When the killing is the direct result of such an act [one done with implied malice], it is not necessary to prove that the defendant intended that the act would result in the death of a human being.” (CALJIC No. 8.31.)
Based upon Garcia‘s testimony and his theory of how the killing occurred, the trial court also instructed the jury on vоluntary manslaughter as a lesser included offense of the charge of murder. Specifically, the court instructed the jury the crime of voluntary manslaughter is the unlawful killing of a human being without malice aforethought but either with an intent to kill or with conscious disregard for human life and gave the CALJIC instructions regarding sudden quarrel or heat of passion (CALJIC Nos. 8.42, 8.43, 8.44), as well as the instructions concerning “imperfect self-defense,” a killing done in the
c. An unintentional killing, without malice, during the commission of an inherently dangerous felony does not constitute involuntary manslaughter
Garcia does not challenge the sufficiency of the evidence to support his conviction for voluntary manslaughter. Rather, he argues the jury should have been offered the option of convicting him of involuntary manslaughter instead because there was substantial evidence the killing of Gonzalez was committed without malice and without either an intent to kill or conscious disregard for human life and, therefore, was neither murder nor voluntary manslaughter.
i. The distinction between murder and manslaughter
“California statutes have long separated criminal homicide into two classes, the greater offense murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice.” (People v. Rios (2000) 23 Cal.4th 450, 460.)
Murder is the unlawful killing of a human being or a fetus “with malice aforethought.” (
Manslaughter is the “unlawful killing of a human being without malice.” (
The statutory definition of involuntary manslaughtеr limits the offense, other than for acts committed while driving a vehicle, to the unlawful killing of a human being without malice “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (
ii. The felony-murder rule, the Ireland merger doctrine and the definition of manslaughter
An unintentional killing, without malice, during the commission of a felony is not murder as defined by
In most instances, if the felony was inherently dangerous, the defendant could be found guilty of second degree murder under the felony-murder doctrine without proof of implied malice (that is, without proof the defendant acted in conscious disregard for human life): “[A]n unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in [Penal Code] section 189,[3] constitutes at least murder in the second degree.” (People v. Robertson (2004) 34 Cal.4th 156, 164; see People v. Hansen (1994) 9 Cal.4th 300, 307-308; People v. Ford (1964) 60 Cal.2d. 772, 795 [unlawful killing in the course of inherently dangerous felony “could not, as a matter of law, have been manslaughter“].) “The second degree felony-murder rule has been part of California law for more than a century and this court has described its function in tеrms which seem admirably precise: ‘The [second degree] felony-murder rule operates . . . to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of all felonies inherently dangerous to human life. . . .‘” (Robertson, at p. 186.)4
When, as here, the only underlying, inherently dangerous felony committed by the defendant is an aggravated assault, however, the felony-murder rule does not apply under the merger doctrine first recognized in People v. Ireland (1969) 70 Cal.2d 522: “To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homiсide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law.” (Id. at p. 539; see People v. Hansen, supra, 9 Cal.4th at p. 311 [“application of the felony-murder rule to felonious assaults would usurp most of the law of homicide . . .“]; People v. Robertson, supra, 34 Cal.4th at p. 173 [“the merger doctrine forestalls the substitution of proof of an assault for proof of malice out of a concern that, in the great majority of homicide cases, such a substitution would enable the second degree felony-murder rule to supersede the requirement of malice . . .“].) Accordingly, the Ireland court held a second degree felony-murder instruction could not be given when it is based upon an assault with a deadly weapon that is “an integral part of the homicide” and that is “included in fact within the offense charged.” (Ireland, at p. 539; see Robertson, at p. 171 [use of second degree felony-murder rule proper when purpose of predicate felony is “independent of or collateral to an intent to cause injury that would result in death“].)
The Supreme Court in People v. Ireland, supra, 70 Cal.2d 522, did not address whether the defendant could be found guilty of a lesser included offense of murder. In People v. Hansen, supra, 9 Cal.4th at page 312, the court observed that a felonious assault committed without malice aforethought but resulting in death, although not properly the subject of a felony-murder instruction under the Ireland merger doctrine, is “punishable as mаnslaughter.” Unanswered by the Hansen court, however, because unnecessary to the decision in that case, was whether the offense committed was voluntary or involuntary manslaughter.
A killing in the commission of a felony that is not inherently dangerous to human life, in contrast, has been recognized as involuntary manslaughter, notwithstanding the limited statutory definition of the offense, “if that felony is committed without due caution and circumspection.” (Burroughs, supra, 35 Cal.3d at p. 835; see People v. Huynh (2002) 99 Cal.App.4th 662, 679; People v. Albritton (1998) 67 Cal.App.4th 647, 654.) In Burroughs the Supreme Court reversed the second degree felony-murder conviction of the defendant, whose massage treatment of a young man suffering from leukemia was responsible for the man‘s death,
In People v. Rhodes, supra, 215 Cal.App.3d 470, disapproved on another ground in People v. Barton, supra, 12 Cal.4th at page 198, footnote 7, the Third District affirmed the defendant‘s conviction of second degree murder, rejecting the contention the trial court had erred in failing to instruct sua sponte on involuntary manslaughter. The court explained the reasoning of Burroughs, supra, 35 Cal.3d 824 did not apply when the killing had occurred during the commission of an inherently dangerous felony: “We recognize that in certain circumstances a killing that occurs in the commissiоn of a felony can be involuntary manslaughter, but only when the felony is not inherently dangerous. [Citations.] That rule does not apply here since assault with a deadly weapon is inherently dangerous due to the nature of the weapon or the degree of force.” (Rhodes, at p. 476.) In footnote dictum the Rhodes court observed that, when a defendant kills unintentionally and without malice as the result of an inherently dangerous felony, the unjustified killing “does not fit within any of the statutory definitions of criminal homicide,” in
Revisiting the issue five years later, the Third District in People v. Cameron (1994) 30 Cal.App.4th 591 disavowed the analysis contained in People v. Rhodes, supra, 215 Cal.App.3d at page 476, footnote 3 (Cameron, at p. 603)5 and concluded the view of involuntary manslaughter taken in that case was incorrect: “[I]f a killing is unlawful it must constitute either a murder or manslaughter, the defining boundary being malice; if the homicide is unlawful and malice is lacking the offense is manslaughter. If the offense cannot be voluntary manslaughter, because the case law holds that voluntary manslaughter requires an intent to kill, it is manslaughter nonetheless and, a fortiori, must be involuntary manslaughter.” (Id. at p. 604, fns. omitted.)
Significantly, although acknowledging that then controlling case law held voluntary manslaughter requires an intent to kill, the Cameron court suggested this view was incorrect. (People v. Cameron, supra, 30 Cal.App.4th at pp. 604-605, fn. 8.) As it applied to the issue before it — the proper categorization of an unintentional homicide committed without malice as the result of an inherently dangerous felоny that was not subject to the second degree felony-murder rule — the court cogently observed, “This well-entrenched doctrine is analytically unfortunate, for an unlawful killing that results from a voluntary battery using force likely to cause great bodily harm but without malice is more sensibly classified, for purposes of culpability, as voluntary manslaughter, regardless of the absence of intent to kill.” (Ibid.)
In light of the Supreme Court‘s holdings in People v. Blakeley, supra, 23 Cal.4th 82 and People v. Lasko, supra, 23 Cal.4th 101 that a specific intent to kill is not an element of the crime of voluntary manslaughter, and particularly its express disapproval of the statement in Burroughs, supra, 35 Cal.3d 824, discussed above, that proof of such an intent is required (see Blakeley, at p. 89), we adopt this last portion of the Cameron court‘s analysis, as well as the holding of People v. Rhodes, supra, 215 Cal.App.3d 470, and conclude an unlawful killing during the commissiоn of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter.
Here, Garcia unquestionably committed an assault with a deadly weapon/firearm on Gonzalez, an inherently dangerous felony, causing
Our conclusion the trial court properly declined to instruct on involuntary manslaughter is reinforced by the Supreme Court‘s decision in People v. Benavides (2005) 35 Cal.4th 69, 101-103, a capital case in which the court rejected the defendant‘s argument the trial court had erred in refusing his request for instructions on voluntary and involuntary manslaughter.6 The court initially found, in light of
2. Imposition of an Upper Term Sentence Did Not Violate Garcia‘s Right to a Jury Trial
In sentencing Garcia to the upper term for voluntary manslaughter, as well as to the upper term on the related firearm-use enhancement, the trial court identified a number of aggravating faсtors: “This crime involved violence and the threat of violence. The victim of the homicide was particularly vulnerable. Mr. Gonzalez was a man who was substantially smaller than the defendant. The defendant himself was visibly a large person. The victim was unarmed and was taken by surprise by the defendant‘s actions, and I believe that the level of intoxication of the victim exhibited upon the medical examination made him vulnerable. The court also finds as a factor in aggravation defendant has a substantial criminal record that goes back many years, and I do believe that he was on probation at the time of this offense, and obviоusly his performance on probation was unsatisfactory, having committed this offense while being on probation.” The court noted as a factor in mitigation that Garcia did not have a substantial felony record.
Garcia contends the trial court‘s imposition of the upper term sentence based on factual determinations made by the trial judge, not the jury, violated his federal constitutional right to a jury trial under Cunningham,
In addition, relying on United States Supreme Court decisions holding the trial court may increase the penalty for a crime based upon the defendant‘s prior convictions without submitting that question to a jury (see Cunningham, supra, 549 U.S. at pp. 288-289; Blakely, supra, 542 U.S. at p. 301; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [“recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court‘s increasing an offender‘s sentence“]), the Black II court held that aggravating factors relating to a defendant‘s prior convictions are beyond the reach of Cunningham. “As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions frоm other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. . . . [\xb6] . . . This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.‘” (Black II, supra, 41 Cal.4th at pp. 819-820, citations fn. omitted.) Accordingly, the defendant‘s criminal history established an aggravating circumstance under
As in Black II, Garcia‘s probation and sentencing report reflected prior adult convictions and sustained juvenile petitions that are sufficiently numerous to satisfy
DISPOSITION
The judgment is modified to reflect the trial court‘s imposition of consecutive sentences on counts 2 and 5 of two years four months each (one-third the middle term of three years under
Woods, J., and Zelon, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied July 23, 2008, S163833. Kennard, J., was of the opinion that the petition should be granted.