*1 No. 16344. Bank. Feb. [Crim. 1974.] In PEOPLE, Plaintiff and
THE Respondent, SEDENO,
LEANDRO A. Defendant Appellant.
Counsel for M. Merritt Defendant and Appellant.
Gary General, Assistant Chief Ashby, J. Herbert L. Evelle Attorney Younger, General, General, James, Edward E. Assistant Attorney William Attorney General, O’Brien, Reller, Eric S. Attorneys P. Collins Nancy Deputy Plaintiff and for Respondent.
Opinion WRIGHT, murder C. J. found of the first defendant A jury degree guilty Code, (Pen. mur 189) of Officer Richard Klass and attempted §§ Code, (Pen. der The court fixed 187) of Officer James Van Pelt. §§ de this for the murder at life In appeal punishment imprisonment. to sustain the. verdict fendant contends the evidence is insufficient first murder and that the trial court erroneous incomplete degree gave instructions. For discussed we conclude that the judgment reasons below must reversed. in the Daly
On the defendant was May morning prisoner his arrest on a mis- been held there City jail, overnight following having Pelt, a.m., demeanor after Officer Van Shortly accompanied charge. other took the only another officer of the Police Daly City Department, his cell then in the from for jail fingerprinting. prisoner photographing returned, was securing pris- and while second officer they When to take oner, his cell in order Pelt defendant from Officer Van removed defendant, theOn way, to the room for the same him squad “processing.” Pelt, leaned ahead of Officer Van in his feet stocking who walking him to leave instructed *7 boots. the officer When over up pair pick with in the jaw and hit the officer boots, defendant straightened up ran then a wall. Defendant elbow, backward into the officer his knocking out building. defendant,
Officer Pelt called Van to another officer and whom pursued he down as if to on a shoe. nearby When quickly spotted reaching put defendant, however, the officer to seize defendant struck him attempted chest, face his fists with sufficient force to cause bruises using and a swollen The officer threw defendant a fence jaw. thereupon against and struck him on of the head his baton. He with top again attempted defendant, seize but when he turned his head as two more momentarily out, Street, officers ran defendant broke and ran toward Mission away and San Francisco. major thoroughfare linking Daly City Officer Van Pelt defendant pursued foot, onto Mission Street on stop- ping station telephone from a coffee to alert other officers. As shop he finished the call Street, and returned to Mission Officer Klass drove by in a black and white car. Officer Van Pelt police Officer joined Klass in the car and the continued. The two pursuit officers stopped again pick a third officer and up then defendant sighted who was still running. They the car across pulled the sidewalk at a officers, service station and all three uniform, who were officer, The third emerged. Thomas Sergeant Culley, told defendant to hurt, give defendant, he would not be up but after at Officer shaking finger tone, Klass and in a low ran around mumbling Officer Klass and continued down Mission Street.
Officer Van Pelt returned to the car. As he was so he saw Officer doing Klass tackle defendant from behind at the shoulders. He saw the two men fall between two vision, cars where parked were out of his they he ran toward them. Officer When Van Pelt was still about 40 feet he saw away the pair from emerge between the cars. Officer Klass on his parked lay right side on the with pavement defendant behind and toward lying facing Officer Klass. to the time Officer Klass and Up defendant had from disappeared cars, view between the none of the officers had parked drawn his gun. When defendant however, and Officer Klass defendant was reappeared, with both hands the holding Smith & Wesson .357 Magnum revolver be- to Officer longing defendant, Klass. Officer Van Pelt saw who was Klass, inches from Officer toward Officer Klass’ back and point gun fire. Officer Van Pelt then who turned defendant grasped pointed at Van Pelt’s gun head. As Officer Van Pelt a shot away, pushed gun was fired which caused burns on the officer’s hand. powder Although officer defendant’s grabbed hands and defendant’s was on the finger trig- the officer did ger, his hands over defendant’s put trigger finger did not cause to fire. gun defendant,
Unable to wrest the from Officer Van held it gun Pelt down on the until it ground arrived and from defendant’s Sergeant Culley pried hand. Defendant continued to resist until several restrained him. people *8 for a after his defendant was treated at the Immediately jail super- arrest Pelt’s baton. laceration caused from Officer Van ficial blow scalp alert, active, and doctor treated behaving The who him found him to be who examined defendant normally. Dr. Walter psychiatrist, Rapaport, 6, 1966, district at 10 a.m. at the on approximately May request at time or mental illness that attorney found no evidence of police, His he aware history schizophrenia. was that had a although petitioner no and no examination of defendant disclosed distorted thinking psychi- defend- atric delusions or In the Dr. Rapaport, hallucinations. opinion malice. ant was and and of harboring deliberation capable premeditation had uncon- The doctor no evidence that defendant been found rendered defendant’s behavior scious as a result of the and did not believe that blow was the result of the on the blow head. 1966, 9, to the
Officer Klass died on from causes related directly June 19, he was on July suffered in the Defendant injuries shooting. charged 19, 1966, 1966, murder, after with but on murder August attempted Penal Code sections 1367- examination to undergoing psychiatric pursuant sus- 1368, were was be found to insane. Criminal presently proceedings He Atascadero defendant was committed to the State Hospital. pended to be insane returned but was found to court subsequently again proceedings was committed a second time on 1967. Criminal April to court found defendant when the were reinstated on October to stand trial. competent Sufficiency 1. Evidence. murder insufficient to establish evidence is
Defendant contends that the to which evidence that there is no substantial upon of the first in degree was deliberate.1 base a conclusion that to instructed as Defendant does not properly dispute first murder.2 degree the elements of degrees “All of murder: respect with provides 1Penal Code section wait, torture, bomb, or in poison, lying of a perpetrated by means
murder wilful, deliberate, killing, com or which is by any premeditated other kind robbery, burglary, of, arson, rape, attempt perpetrate, perpetration mitted in mayhem, or degree; first is murder any punishable act under Section degree.” are of the second all other kinds of murders Jury are Instructions—Criminal herein to California 2All references “CALJIC” following any (rev. 1958). instruction “Supp.” parentheses ed. The abbreviation to that pocket supplement work. to the 1967 indicates reference made following that ref any instruction indicates supp.” parentheses abbreviation “ltr. subsequent publica issued letter erence is made to revision or new instruction *9 712
“An court must view the evidence in the most favorable appellate light to and in of the the existence respondent presume of support judgment fact the trier could every deduce from the evidence.” reasonably Reilly (1970) 649].) 425 The 475 P.2d Cal.Rptr. [90 test is not whether a conclusion have been reached nor contrary might whether the court believes has been established a reviewing guilt beyond doubt, reasonable but whether substantial evidence the conclu- supports sion of the that the had met its jury burden of prosecution establishing (Id.) a beyond reasonable doubt. guilt
Here evidence and reasonable inferences drawn therefrom would a conclusion that defendant deliberated his act before shoot support Officer He had been Klass. officers while from ing by fleeing stopped police He had been advised to surrender and had been assured that he jail. would not be hurt. nonetheless to continue his and He attempted flight and, when restrained Officer seized the while the Klass officer’s gun defendant, his back shot the officer officer was on with to lying ground the back. He had then to shoot the second officer who sought in attempted to restrain and had to resist him continued violently capture. pocket prior publication of the 1967 and of the 1970 third revised supplement tion edition which was not yet available at the of trial. time following given: instructions were wilful, perpetrated by any CALJIC No. 303: “All which is de- murder kind of killing premeditated aforethought degree. liberate and with malice is murder of the first “The word ‘deliberate’ means formed or arrived a upon at or determined as result thought weighing of careful against and of for proposed considerations and course of ‘premeditate’ thought action. The word means over beforehand. you killing clear, “If find that the preceded accompanied deliberate life; kill, intent to part take an intent on of the defendant to be which must result of existing premeditation, deliberation and so that it have upon pre- must been formed condition, not under a passion reflection sudden heat of or other such as deliberation,
precludes idea it degree. is murder of the first length period units of time the of the “The law does not undertake measure in thought pondered ripen during before it can into an intent to which the must truly premeditated. vary will different in- kill which is deliberate and The time with duration time, varying not the dividuals and under circumstances. The true test is cold, judgment may calculated but rather the extent of the reflection. A decision time, period impulse, at but a rash be arrived short mere unconsidered and kill, though premeditation it include an intent to deliberation even is not such as killing degree. fix as of the first will an unlawful murder To constitute deliberate killing, weigh slayer killing premeditated question must and consider the and, against having consequences, and the reasons for and decide to and commit the unlawful act such a choice in mind the causing death.” wilful, (Supp.): you may guilty CALJIC No. 303-A “Before find the defendant premeditated degree, you deliberate and murder of the first must determine that at allegedly the time the crime capacity was committed he not had sufficient mental specific to form the maturely intent kill but also had capacity sufficient mental deliberate, meaningfully and templated premeditate upon and reflect gravity of his con- aforethought.” act and to harbor malice People As Robillard Cal.2d 88 1086], Officer A.L.R.2d the circumstances that the kill- Klass afford a sufficient basis which the could infer upon rash, act, had in the course of not a and that defendant ing *10 impulsive offi- his from in his mind the that the flight jail pursuing weighed possibility him, the reasons for and cers would and after considered apprehend having action, (Cf. kill if necessary. such decided to resist and to against capture 550, P.2d People (1968) v. Anderson Cal.2d 15 447 70 Cal.Rptr. [73 942].) length time which an intent to kill is during pondered may with the
vary individual and the circumstances. The test is the ability the defendant to and maturely of his meaningfully contemplate gravity intended act. (People v. (1968) 39, Risenhoover Cal.2d 52 70 Cal. [73 533, 925]; Rptr. People 447 P.2d (1964) v. 821 [40 Wolff 959]; People 394 P.2d Thomas (1945) 7]; People 30.) 24 Cal. There Sanchez was substantial evidence here could find that upon defend ant was able to and did kill deliberately.
2. Instructions. Defendant took the stand in his own defense testified to history illness, of mental as which had resulted diagnosed paranoid schizophrenia, in several of institutionalization. At the periods time of the he was shooting on an indefinite leave from a veteran’s and had discontinued the hospital use of his medications for week. prescribed approximately witness,
Dr. Charles had ex- called as a defense Respini, psychiatrist amined defendant in and found to be acutely him August psychotic to stand trial at that his defendant had timé. In incompetent opinion kill, been sane at the time of the and had the to intend to killing, capacity but diminished his and over- in that he was judgment overly suspicious reacted when he defendant was felt threatened. Dr. did not believe Respini with malice. acting capable
Defendant testified that he was able to remember at least 95 percent the events surrounding Officers Klass and Van Pelt. shooting He testified that cell, when Officer Van Pelt took him from the officer him and he “lost control.” pushed Rather than he officer assaulting decided to “retreat” by He denied and stated fleeing. officer hitting that he had been hit twice on the head with the and was baton bleeding when he ran that the He feared officers would panicked again away. beat him again.
Defendant testified that he had been handcuffed immediately upon being side tackled and that “a few” officers then kicked him “all over” his left held while his were while one his hands. Then choked him legs someone released, lifted his head and saw an held. neck was defendant When him that he Defendant stated officer in front of facing away. squatting air, holster, from the fired a shot into the officer’s gun grabbed it loose. At was unable to shake then but attempted drop weapon them, this his hands and turned causing Officer Van Pelt grabbed point Defendant, who claimed fire it. accidentally him to gun trigger events, the second testified to recall order accurately be able struck Officer was the shot that had been fired accidentally shot which that he He stated shoot Officer Klass. denied an intent to Klass. He having *11 choked, but then because he being the in a “reflex action” took gun air rather fired into the therefore and that he was doing wrong realized at the officer. than by the evidence expressed the defense suggested of
The theory ill so statement, mentally defendant was was that counsel opening malice, the shot which and that or harbor unable to to be premeditate as accidentally. fired Klass was Officer death of in the resulted murder,3 second degree first and on fully the jury instructed court 2, supra) (see fn. (Supp.) 303-A 303 and giving Nos. CALJIC 3In addition language of: in the court instructed killing of a human modified): is the unlawful “Murder (Supp. No. 301 CALJIC aforethought. being with malice as"dis- the act precede ‘aforethought’ only that intent must means “The word (necessarily) imply delibera- ‘Aforethought’ afterthought. does not tinguished from time. considerable lapse or the of tion murder, express implied. may or be either ‘malice’ connection with “As used in being. a human unlawfully to kill is an intention express there “Malice when is degree involving high a killing act (1) results from an implied is when “Malice base, death, intentionally done for a which act is it that will result in probability of life; (2) killing when the disregard for human with wanton antisocial motive is felony a in- attempt perpetrate or the perpetration a direct causal result of herently dangerous to human life. enmity necessarily hatred or imply preexisting not a “The ‘malice’ does term killed.” person toward the modified): degree is of second also the un- (Supp. “Murder CALJIC No. aforethought being there is killing a with malice when manifested human lawful being the evidence is insufficient to estab- unlawfully to kill a human but an intention premeditation.” lish deliberation and (ltr. degree the unlaw- supp.): “Murder of the second is also CALJIC No. 305.01 involving high killing being a of a as the direct causal result of an act ful degree social human death, base, it act for a anti- probability that will result in is done disregard for life. purpose and with wanton human act, killing necessary result of an it to establish “When the direct such being.” a that the defendant intended that his act would result in the death of human diminished on in a No voluntary context of manslaughter capacity.4 were instructions and none was on voluntary manslaughter given requested as an intentional sudden or heat committed quarrel “upon unconsciousness, or on self- on on passion,”5 involuntary manslaughter, defense, nec or the effect force was deadly of an unreasonable belief that in defense self. essary of these theories sponte, sua instruct, on each court
The duty set forth of the examined in principles light defense will separately below. cases, the absence of even in request,
“It in criminal is settled that to the of law relevant must on general the trial court instruct principles of law The general principles issues raised the evidence. [Citations.] with connected case are those closely openly governing principles court, under which are for necessary jury’s the facts before the v. St. Martin of the case.” standing 390].) has been held to include 463 P.2d That obligation raises instructions lesser included when evidence on offenses
giving were as to all of the offense charged whether elements question *12 618, e.g., People (1969) v. Hood 1 Cal.3d (see, 444 present Cal.Rptr. [82 ^ 370]), less 462 P.2d but when there is that the offense was no evidence 469, (People v. Noah than (1971) that 5 Cal.3d 479 charged. Cal.Rptr. [96 terms, statutory explained but voluntary manslaughter in court did not define 4The finding capacity to entertain diminished mental jury the effect that a on the have verdict. murder should states that are elements specific mental you “If from the 305.1 to instruct: find (Supp.) modified CALJIC No. The court committed, sub- alleged the defendant had crime was that at time the evidence illness, or by whether intoxication stantially caused mental capacity, reduced mental cause, effect, capacity had any, this diminished you consider what if any other must states any of the that are essential ability specific defendant’s to form mental on the Thus, capacity mental was so you find that defendant’s of murder. if elements did, pre- not, he you he have a doubt whether did or reasonable diminished wilful, deliberate, kill, meditate, you intent to cannot convict him of a or form an Also, degree. you if premeditated find that deliberate murder first not, you he have a doubt capacity mental was so diminished that did reasonable did, aforethought, you, you he been defined for can- whether not find him harbor malice as it has guilty degree. you either the of murder of first or second In that case any guilty cannot find the defendant offense included within Count I of the Infor- higher manslaughter. voluntary mation than killing “Voluntary manslaughter being is the intentional and of a human unlawful with deliberation and where the evidence premeditation shows due to diminished defect, capacity capacity caused mental illness or mental the defendant not have the did constituting to attain the mental state malice.” Code, “Manslaughter being, 5Penal section 192: unlawful of a human without It is quarrel malice. of three kinds: 1. Voluntary—upon [¶] sudden or heat passion. . . .” 716
441, 1009]; 487 People P.2d v. (1969) 759, Osuna 70 Cal.2d 767 [76 462, Cal.Rptr. 678].) 452 P.2d The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not fails to the instruction request but to its objects expressly being given.6 (People v. Mosher (1969) 379, 1 379, Cal.3d 393 461 P.2d Cal.Rptr. [82 659]; People v. Graham (1969) 303, 217, 71 Cal.2d 319 Cal.Rptr. [78 153].) P.2d Just as the have no interest in People legitimate obtaining a conviction of a greater offense than evidence, that established defendant has no to an right when that evidence is acquittal sufficient to establish a lesser included Martin, (People offense. v. supra, St. 1 Cal.3d 524, 533.) instruct, sua duty sponte, on general principles closely connected
openly with the facts before the also court an obli encompasses gation to defenses, instruct on unconsciousness, self-defense and including and on the of these relationship defenses to the elements of the charged Thus, offense. have we held that where evidence of diminished has capacity been presented court must instruct the on the jury possible relevance of that evidence to the existence finding of the mental elements that are part the offense of (People murder v. Henderson (1963) 482, 77, 386 Cal.Rptr. 677]), [35 P.2d and must also instruct on voluntary manslaughter the diminished (People context. capacity Mosher, supra, 1 Cal.3d 390-391; People v. Castillo (1969) 70 Cal. 2d 268-269 [74 449].) 449 P.2d
Unlike the rule the court instruct on included lesser of obliging fenses and to give instructions whenever there is “any evidence requested consideration whatsoever” deserving any Carmen 281]), instructions, sponte, sua duty give *13 on defenses and their relevance to the offense arises particular charged if it only defense, that the defendant is on such or if appears relying there is substantial evidence such a defense and the defense supportive Indeed, not inconsistent with the defendants case. this theory limitation on the of the duty trial court is because it necessary only would be burdensome to more of trial be unduly but also require judges, cause of the to potential defendants if instructions were on prejudice given defenses inconsistent with the relied theory upon. “Ap pellate sponte insistence sua instructions which upon are inconsistent with defense trial or not theory demanded clearly the evidence would hamper defense trial attorneys under put judges to theories pressure glean legal give reversal, 6Failure to such objection Phillips (1966) an require instruction over does not how ever, since (People 574, the error is invited. v. 64 581 Cal.2d [51 225, Cal.Rptr. 353].) 414 P.2d
n y J'y instructions.’’ for tenable the evidence remotely sophistical and winnow Cal.Rptr. 878 [66 v. (People Cal.App.2d Crawford .)7 527] instructions on of these turn now to principles
We application defendant contends which and self-defense defense of unconsciousness court sponte, been sua the trial given, should have to warrant evidence that there was no substantial It not only appears basis defense, was no and that there upon instructions on either giving theories, of those on either which to conclude that defendant was relying defense accidental death inconsistent with the but that these defenses were in Unconsciousness, not voluntarily when defendant. asserted by 310, 323-324 (People Conley (1966) duced v. 64 Cal.2d [49 (Pen. Code, 911]) is a defense to a criminal charge. 411 P.2d complete Five.) subd. An unconscious act within the contemplation § who because of som of the Penal Code is one committed aby person head, nambulism, or similar cause is not conscious a blow on (People volitional whose act therefore cannot be deemed acting Hardy (1948) 865].) Defendant ap relies on the he on the head and evidence that had been struck parently as the were not basis for an inference that his acts staggered subsequent Klass. Had volitional that he had been unconscious when he shot Officer thereon, he relied on this defense and an instruction expressly requested we would be forced entitle to conclude that the evidence was sufficient to Carmen, 768, 773.) him to the supra, instruction. defendant’s own in the face of such a In the absence of request events surrounding of the at least percent that he recalled testimony trial court to lead the might tenuous of reasoning most shooting, de a criminal duty of counsel emphasize that appropriate deem it 7We which in his all instructions request for preparation fendant judgment includes careful defense legal upon theories necessary explain all are court, however, evidence that would that there is substantial to the appears rests. If it defendant, the court should by a that advanced defense inconsistent with support a theory. alternative on the he wishes instructions the defendant whether ascertain from inadvertently over not been theory has will afford assurance that inquiry Such *14 449; Hood, 444, People v. Wade (Cf. People supra, 1 Cal.3d looked counsel. 683, 116].) (1959) 348 334 [1 lesser degrees encompasses or divided into charged offense is one that is When the the lesser offenses, jury could conclude that the there is evidence from which it committed, theory even if the alternate court instruct on had been the must offense obliging the the rule the elected the defendant under inconsistent with defense is supra. court to instruct on lesser included offenses discussed he was have or relying that defendant been unconscious that suspect might on unconsciousness as a It one conclude might defense. that possible Klass, that defendant’s thát he offered in the did not shoot Officer testimony face of evidence to the an inference overwhelming warranted contrary, that he not did the because he was unconscious due to remember shooting the on blow the an would head. Such inference be reasonable if defendant’s additional which Officer manner in testimony describing Van Pelt caused to were We do allegedly gun disregarded. fire not such trial require feats mental of our Olympian judges. gymnastics Defendant elected a that that defense he was conscious at the presupposed time of the The court was not to killing. a inference contrary draw required instruct, sponte, or to sua on unconsciousness. instruct,
By there was no error in sua parity to reasoning faffing sponte, on self-defense. A homicide is when in de committed justifiable fense of self “when there is to reasonable design ground apprehend commit a or to do some felony and imminent great bodily injury, danger Code, such design (Pen. being accomplished.” 3.) subd. Here § defendant evidence that he had been kicked choked presented im before he mediately seized in a “reflex action.” There weapon however, was no evidence, that defendant believed his life was endangered and he denied resistance any intent expressly assault any shoot Officer Klass. He testified that the assault had ended at the time of officers, that he shooting, shot into the air in order startle the and he twice disclaimed as specifically firing a means of gun self-defense.
It is not error to refuse for instructions on self-defense when request there is no evidence from which it can be inferred that the defendant when, feared victim, great harm or death bodily at hands or has defendant denied in self-defense the death acting claimed (People v. Manning accidental. Cal. 856].) P. A fortiori, sponte a sua instruction Since there was no evi- required. dence that self-defense, defendant believed he was there was acting likewise no basis for an instruction on the effect of an unreasonable belief force deadly defense self. necessary
Defendant also contends the court should have instructed on Code, voluntary (Pen. heat manslaughter committed in the of passion 1) subd. § as a nonmalicious homicide involuntary manslaughter aby committed the mental person to form either lacking capacity intent to Conley, kill to harbor malice. (People supra, 324-326, 4.) fn.
719 or heat sudden committed on manslaughter quarrel Voluntary (People within crime of murder. is a lesser included offense passion 852].) Un (1959) 548, v. Dewberry 51 Cal.2d P.2d [334 555-557 offenses, must however, where instructions like most included necessarily have a sponte might be there is that sua if given any possibility offense have doubt all of elements of the greater reasonable whether is in been in the heat of passion unique manslaughter proven, voluntary that definition of the offense circumstances statutory specifies malice, which the law will the absence of element presume If inten distinguishes though murder from a even killing, manslaughter. tional, is shown to have been committed in a heat of sufficient passion upon (People (1959) the absence of is v. Brubaker provocation malice presumed. 37, 8].) 53 Cal.2d 44 P.2d [346 that the case
However, it from unless prosecution’s appears sufficient and upon provo heat of in the killing was committed passion in the doubt raise reasonable is defendant to a cation the burden on the v. Court Superior (Jackson minds was that malice jurors present. 374].) 838, P.2d Because 399 (1965) 521, 526 Cal.Rptr. [42 aof killing when the circumstances the existence of malice presumed “ from resulted intent to or that ‘the an kill suggest killing proximately life, which act act, are an the natural of which dangerous consequences who that his conduct en was knows deliberately performed person ” for life’ life acts with conscious disregard of another who dangers (People 574, 587), v. and heat of Phillips, supra, 64 Cal.2d provocation (1969) v. Williams (People be 71 must demonstrated. passion affirmatively 614, 65, (1969) Morse 633]; People Cal.2d 623 v. 456 P.2d Cal.Rptr. [79 607].) Cal.2d It not 734-735 [76 There must also evi that alone be demonstrated. enough provocation dence it reason was fact from which can be inferred that defendant’s Morse, supra, obscured time the act. at the by passion 734; Logan 1121].) People 175 Cal. P. sponte manslaughter Before court must instruct sua on voluntary in the there must heat of as a lesser offense included within murder passion heat at the time be either some evidence that passion present know the defendant is relying reason for the some court on that a defense. as theory manslaughter kicked and choked
Here defendant testified that the arresting officers basis him he was for That evidence form although resisting. might But no- evidence was that sug offered finding adequate provocation. in a heat of when he gested acting passion defendant resultant shot Klass. shoot Officer Officer He not denied intending *16 when a re
Klass he took the fact that would not giving gun, preclude Dewberry, supra, manslaughter (People instruction on quested voluntary 548, 557), when but twice denied back he fighting expressly realized soon as he was he testified that he as being Additionally, beaten. took the that it done fired into was to have so and therefore gun wrong the Had to air. defendant elected to invite the as whether jury speculate he had shot the officer in a heat of from the assault passion resulting upon officer, him the by his the he notwithstanding might testimony contrary, have and received instructions on in requested that voluntary manslaughter not, however, since context inconsistent defenses be offered. He may may the trial a sua expect sponte instruction on that judge give theory to the manslaughter when own is effect that he was not testimony acting in a heat of is there neither direct evidence of passion heat passion reason for court nor the to know that he on that defense. relying however,
It error, was sponte for court sua to fail to give (Pen. Code, instruction on manslaughter. 2.) subd. involuntary § Petitioner that the correctly contends evidence of diminished capacity sufficient to warrant a sua sponte instruction have might because jury believed that although he at the conscious time he shooting Mosher, lacked both the intent to kill malice. supra, 1 Cal. 3d 391.) The error was not in the People suggest prejudicial circumstances this case since the under the on jury, given instructions murder, first degree found necessarily both that the was intentional it that was committed with malice. A similar People contention was made in v. Modesto (1963) 59 Cal.2d There a of this majority 33]. held court that a defendant has a constitutional right have jury determine evidence; material every issue by that an erroneous presented on failure to instruct a lesser included offense constitutes a denial of that and that right; such error cannot be cured evidence and weighing it not finding that a reasonably instructed probable correctly would have convicted the defendant of the lesser included at (Id. 730.) offense. p. We adhere to that portion the decision. The however, Modesto majority, also held that the error cannot be cured circumstances appropriate the verdict in the examining light of the instructions given and finding that resolved, jury necessarily in a although different the same setting, factual that would question have been presented by instruction. missing (Id. 731.) at p.
The latter Modesto rule was criticized vigorously dissenting opin- ion of Justice (id. 744-757), Schauer at pp. experience during since to that rule decade Modesto has demonstrated adherence *17 neither consideration to assure defendants their to necessary right jury avoid all material issues the evidence nor to by prej required presented Thus, determine it is to udice. in some circumstances possible erroneously that an a included offense was instruction on lesser although omitted, instruction was neces the the omitted factual question posed by other, the defendant under sarily resolved to adversely properly given have been instructions. In such cases the issue should not be deemed to removed from the has been resolved in another consideration since it jury’s context, and can be the since the evidence there no to defendant prejudice that the offense would lesser was committed support finding Therefore, has been the Modesto rejected by to the extent that jury. cases it hold that the erroneous failure an instruction following give to on a lesser included offense is even necessarily though reasonably it prejudicial, from the verdict the instructions that the appears given jury rejected the evidence offense, to tending the are they lesser overruled. prove case,
In the instant defendant’s evi jury rejected necessarily dence diminished it intent to kill when found capacity negated Thus, to be first rather than shooting second murder. degree degree the failure to could an instruction on not give involuntary manslaughter have been to could been no less defendant since the offense have prejudicial than we voluntary Had there been no further error could manslaughter. not affirm the since failure to that instruction did remove judgment give issue material from consideration of jury. However, jury consideration of defendant’s diminished application malice, defense to the capacity existence the element which distinguishes murder from either voluntary involuntary was manslaughter, precluded court it gave when a second based degree felony-murder instruction on the and a further instruction that if escape8 occurred killing during an the offense could be no less than second escape murder. degree
Defendant’s trial took our People Lopez decision in v. place prior 45, (1971) 44, 1372], 51-52 P.2d in which 489 Cal.Rptr. [98 that, abstract, we held viewed in the is not an inherently escape dangerous is, felony from commission which malice It may implied. jury (Itr. 8The language supp.): instructed in the of CALJIC No. 305.02 “The accidental, intentional, being, unlawful of a human whether unintentional or as a occurs direct causal attempt result of the commission of or commit felony inherently dangerous life, (with namely, escape human the crime force violence) and where there specific of the perpetrator mind intent crime, to commit such degree. murder of second .” . .
therefore, error on an instruction second murder give degree predicated Lopez as the The rule announced in underlying felony. upon escape at to cases on direct the time of that decision. applicable pending appeal (Cf. People (1970) Sears 188 [84 Cal.Rptr. 847], Ireland Cal.2d 522 People rule of applying to a 450 P.2d 40 A.L.R.3d pre-Ireland 1323] trial.) first error have been since the This not might prejudicial, did base its decision on verdict that the not murder degree suggests instruction, had the court degree the second felony-murder imple doubt, it “If find a reasonable beyond mented also that: instructing you *18 and, the defendant that Officer Klass’ death was caused by proximately further, of with death occurred commission an escape that the the during violence, then of diminished if capacity force or the regardless killing, existed, added.) (Italics The such must be at least second murder.” degree that that an initial determination clear of this instruction was implication malice and an made it find necessary the occurred killing during escape wilful, and that was that if it was also determined the killing premeditated, were deliberate, no instructions the murder. Since offense was first degree no basis and we when have terminated on the escape might perceive given that the killing have the conclusion the avoided jury might upon may the deliberations the for jury’s an threshold took during escape, place murder. no less second degree the could be than have been that killing well was removed so, non of malice issue the existence vel If the material of consideration. from its in- felony-murder effect the second degree concede the of
The People within a of structions, encompassed malice but that argue concept there- wilful, They deliberate. and was that finding killing premeditated, of all found necessarily the the error that notwithstanding fore urge of murder. degree first elements The mental state malice is of that en comprising independent “wilful, deliberate, that within concepts compassed premeditated” 59, (People (1944) are elements of first Holt 25 Cal.2d 70 degree murder. v. 21].) Ill will or hatred of the victim are not of P.2d toward requisites [153 (People (1945) in v. Bender as that term is used murder. defining malice 164, that if 8].) 27 P.2d instructions Cal.2d 180 Early explained [163 was that evidence “an abandoned done circumstances (1953) 41 (People v. Thomas heart” malice could be found. malignant 1].) instruction 470, too that Considered cryptic, Cal.2d 480 [261 P.2d evidenced circum by that malice was one explaining superseded “ act, the ‘an caused by that the killing proximately stances indicating life, which was delib act of which are dangerous natural consequences
723 erately by who performed knows his conduct person endangers ” life of another who acts with conscious for life.’ v. disregard Phillips, 574, supra, 587; People Washington Cal.2d And, 130].) People Conley, supra, noted we who was person deliberation, i.e., of capable who course he of action carefully weighed was about to take to kill his chose victim after the reasons considering it, for and would against normally duty capable comprehending law, act within we but also noted that if he were not capable such his act was not malicious. We that this comprehension explained par awareness, ticular “awareness to act within type obligation general laws as body society” statutory regulating required malice in terms “abandoned language describing implied malignant heart”9 since those words an anti-social motivation. imply however, deliberated, that a who argue, defendant who has People has his course and has the reasons carefully weighed of action considered *19 it, that for and must considered those reasons the fact have against among A it is and within unlawful that he is to act the law. similar argu obliged v. People Conley, supra, ment was made the by People
322-323. In it since deci we noted that at least the rejecting People sion in v. it has been (1959) Gorshen Cal.2d 716 492] settled that was mental by a defendant whose mental diminished capacity intoxication, illness, or have disease or defect short of insanity, by might in his have been yet deliberated act before killing premeditated of malice. capable harboring
Here there was testimony defendant was expert schizophrenic, para noid, delusional, and overly threatened, that he felt suspicious, lacked and did not have the act judgment, to with malice ability aforethought. was instructed jury that “Malice is when there is express an intention kill unlawfully (1) to a human is being, Malice when the implied killing [¶] results act from an a that it involving high will result degree probability death, act base, which is intentionally done for a anti-social motive life; with wanton disregard for human or when the is direct killing causal result of the or the to felony in perpetration attempt perpetrate to life.” The instructed lan herently human in the dangerous jury Conley, People supra, this court in guage suggested 4, that of diminished could rebut footnote evidence capacity pre- express 9Penal section may express implied. Code 188: It is “Such malice or away when there manifested unlawfully a deliberate to of a intention take life implied, It provocation appears, fellow-creature. no when considerable when attending malignant circumstances show heart.” an abandoned and acts dan- is able to prohibition sumption person comprehend conduct to the law. to conform his life and obligation human gerous assume, therefore, that the defendant deliber- that in cannot finding We com- conduct, he found that necessarily his capable ated jury his the law and after weighing conform conduct to duty prehending to kill. made a reasoned decision that obligation the evi issue raised was a material The existence malice it that under the instructions given cannot determine dence. We this issue. considered necessarily is reversed. The judgment Sullivan, J., Mosk, J.,
Tobriner, J., concurred.
DRAPER, J.* I dissent. Modesto, decision overruling in the
I
concur
heartily
that failure
33])
holds
382 P.2d
or case, here the instruction given, Under the facts of this and the of language Lopez, the decision relied by majority upon 1372]) and cannot is readily distinguishable a county and had from Lopez, In defendant others escaped apply. later, Two a detection, violence. days without and without jail obviously food, and assaulted violently codefendant broke into' a to obtain home there, was who lived one of them. The instructed couple killing jury “The . the direct unlawful of a human . . which occurs as being inherently causal result of the of or to commit a felony commission attempt life, ... is murder of to human the crime of dangerous escape, namely, out, of the second As the court the statutory proscription degree.” pointed (Pen. Code, 4532) The court from a is broad. extremely escape jail § as that the as defined in the code section range “escape,” emphasized * Assigned by the Chairman of Judicial Council. whole,
a “The overly range included modes escape comprehensive. from those of one involving force violence to tardiness on part in 51.) a work “It (6 applies Cal.3d at engaged furlough program.” p. the man who as well as to from a tardy furlough work returning man who a obtains contraband and decides to shoot his out way weapon (Id.) “It who, defendant, those jail.” like fashion rope this applies blankets, it, from climb down as well as to those steal into the woods who strangle to obtain his We cannot conclude that those guard key. who commit nonviolent such as here those escapes thereby per- suggested an offense petrate which should serve as basis the im- for logically (Id.) malice in a putation aforethought murder prosecution.” Here, however, the evidence is clear that the force and by escape violence in its within the continued uninter- inception jail. The escape and the increased, ruptedly, degree force and violence severity down throughout the officers’ immediáte brief from the pursuit jail street to the city at which defendant shot one shot point fatally officer and. at another. rule, The instruction on the second murder in the degree given case at bench and not by did quoted majority, any way purport malice from all imply within the broad escapes section 4532. range Rather, imputation limited to death caused expressly proximately by defendant of “an during commission force or with violence.” escape Thus “tardiness on the of one in a engaged work part furlough program” and a successful quietly from are stealing excluded. away jail Only escape by force or violence was to be considered permitted by as implying It malice. seems that an indisputable by force and violence is an escape anti-social act and that it and in the inherently abstract is to life. dangerous Lopez that, footnote,
I section 4532 “does aware declares that am offenses—i.e., violent . . . create two nonviolent separate escape course, is, (6 9.) at unnecessary fn. The comment escape.” p. decision, an force or which dealt with effected without escape those violence. But section does between clearly escapes distinguish state effected force or violence those which are not. The term prison *21 for without is one and while that day, force or violence one year escape Moreover, for a force or violence is “not exceeding escape by years.” of or shall not be violation section 4532 “not force violence charged as for a a conviction in prior felony any subsequent prosecution public Thus, the and offense.” the code section itself between minor distinguishes the offenses covered its broad major scope.
Here, murder- the trial court the second degree limited of application Thus rule to the “commission of an with force or violence.” felony escape although here. The nonviolent Lopez escape, the tenet is absent basic of whole, elimi- a the section as the broad of an offense within scope made more 4532 as the section recognized by nated. the violent Only escape, for crime, as the basis postulated serious more severely punishable is con- the issue abstractly the of murder. However second degree finding which sidered, that an unlawful killing I find error in instructing no force violence is second an occurs as direct causal result of escape by murder. degree the however, establishes that Lopez it only
Even if were applicable, not, It does under was erroneous. second instruction degree murder-felony case, of this the prejudice. facts question particular determine it “jury because under holds that the instruction majority prejudicial defense of defendant’s diminished consideration of the capacity application malice, to murder the existence of the element distinguishes I cannot either involuntary manslaughter, or voluntary precluded.” cannot if the defendant’s It is true that malice found agree. quite implied were obligation so diminished as to “awareness preclude capacity to act within the of laws general body regulating society.” Here, 911].) Conley, 64 411 P.2d however, defendant’s own an absence of such awareness. testimony negates notes, As the he “reflex defendant testified that took in a majority gun action,” that was have “realized as soon as he took it to gun wrong done so and fired He that second therefore into air.” testified hand, to grabbed officer defendant’s gun forcing gun discharge time, that this Klass. This testi- second second bullet struck Officer within evinces a clear and awareness of his to act mony present obligation law His of the that he there- general regulating society. testimony body fore fired the first shot into the air establishes his at recognition firing Officer Klass would human life. The fact issue remaining endanger had killed was whether he for the shot that trigger voluntarily pulled Klass, Officer or Van his caused whether Officer Pelt’s hand grasping the fatal bullet. The resolved that issue gun discharge jury obviously him. against Thus own contradicted the claim testimony present follows, diminished as It as the malice. capacity majority negating implied holds as to the claimed unconsciousness, defenses of heat passion, self-defense, for that defendant’s own left no factual basis testimony Conley instruction and he was unable reliance on precluded theory life,” either the acts human comprehend dangerous “prohibition defense “the of the conform to the law.” The conclusion obligation shooting as at the psychiatrist to defendant’s mental moment capacity *22 defendant, based interview with obviously his out-of-court upon the latter’s at defendant’s own testi- statements him that interview. But before con- expert’s the removed the basis for the mony completely jury clusion.
The that “defend- adheres to that the Modesto rule of majority portion ant’s to a when thereof instruction there is evidence right manslaughter the likeli- not our evidence to determine precludes weighing hood that a have found instructed would manslaughter, properly jury also our the failure the issue but determine how to present attempting have its choice or influenced manslaughter jury the may may 731). It is (59 first between and second murder.” at degree p. rule that the somewhat extended of that upon application apparently consideration finds in the removal from majority jury claimed prejudice no of the issue of own left factual malice. Since defendant’s testimony verdict, basis for no issue the would warrant finding manslaughter instruction to defendant was removed from the the importance jury by with force violence the second murder- degree as upon escape invoking rule. felony
The now overrules Modesto insofar as it holds that failure to majority instruct a lesser included The upon offense is se. prejudicial majority per makes evidence, clear that it does opinion look to the which it summarized at some length, to conclude that there was no in court’s prejudice unconsciousness, failure to instruct heat of self-defense. upon passion, I am entirely unable to in this between to the distinguish looking respect evidence to find whether omission (which of an instruction necessarily consideration) was to' “precludes” jury it to find prejudicial,, looking whether inhered in an prejudice affirmative instruction which “precludes” effect, case, jury same, consideration. The either and if the evidence case, is to looked to in the one it is to do logical so other. equally Const., (Cal. VI, constitutional 4½), art. formerly provision § § cause, of a proscribes reversal “in judgment on the any ground misdirection of . unless, . . an after examination of the entire jury cause, evidence, including the court shall be of the opinion error of has resulted in a It is complained miscarriage justice.” arguable that this does not authorize language reweighing by court many Here, however, types (unlike evidence. conflicting defendant Modesto defendant) did His testify. testimony eliminated all completely factual for the conclusion of the In this support psychiatrist. unusual situation, conflict, if is so any, minimal and determination so review of the apparent verdict, from evidence from its unanimous that it seems to me a clear of section 13 look flouting to refuse to to the *23 he was whether deciding defendant given by prejudiced
evidence the instruction.
I would affirm judgment. Burke, J., J., and concurred.
McComb,