*1 Sept. No. 22406. 1982.] [Crim. PEOPLE, Respondent,
THE Plaintiff and WICKERSHAM, Appellant. Defendant and
DOROTHY SUZANNE
Counsel Riordan,
Dennis P. James Larson and Larson & for Defen- Weinberg
dant and Appellant. Philibosian, General,
George Robert H. Chief Deukmejian, Attorney General, O’Brien,
Assistant and Edward William D. Stein P. Attorney Wilkinson, General,
Assistant Herbert F. W. Eric Collins Attorneys General, Gillette,
and Dane R. for Plaintiff and Deputy Attorneys
Respondent.
Opinion
BIRD, concerning C. J.This case raises several trial questions What
court’s sua in criminal cases. sponte to instructions duty give
standard in whether to determining should the trial court apply Did the evidence in the
instructions on included offenses? necessarily on and second
present require voluntary manslaughter case instructions where of “invited error” be invoked murder? Should doctrine
degree a deliberate tactical objection
the defense counsel has not articulated
required instructions?
I. in the death shooting first murder degree was convicted of Code, (Pen. 1979. husband, Curt, September
of her who died on firearm used a appellant found that also 187, 189.)1 The jury
§§ 12022.5.2 of section
within the meaning 8th, appellant telephoned p.m. September after 1:30
Shortly relief be- to request emergency Communications Center
Marin County her called priest, Monsignor accident.” She then
cause of “a terrible The Novato Police
Keane, Depart- the house. and asked him come to occurred at her that an accident had
ment was contacted and informed
home. to arrive at the Earner was the first officer Gary
Police Sergeant in the street standing about 20 to 30 people
scene. He found group be “who ... appeared hys- home. appellant’s Appellant, front said
terical,” .... yelling hysterically him. “She was approached [S]he response and had been shot.”
that her husband was the house shooting. stated that she had done the question, officer’s appellant in the bedroom and gun
She also told him that her husband was
was aat house. neighbor’s with while Ser- appellant
Officer Michael Funk arrived and stayed the stairs to up As he started
geant began Earner to search house. floor, near the body wrought second he saw husband’s appellant’s Curt was
iron Earner determined that on the above. railing landing
dead. Weber, one
Two soon after Funk. Robert paramedics arrived Officer down and the
of the that the was face paramedics, body lying testified body When the protruding through railing.
head and arms were removed, hole Weber noticed bullet
turned over and the shirt collar
above breast. right at the same time as paramedics.
Officer Lance arrived McHenry police when she sought two months earlier had met
McHenry Curt. because of threats made
protection alleged 8th, up “ran on September
Officer testified that *7 McHenry and made several statements. in a condition” me hysterical-type of her She because condition. unintelligible
Some of the comments were an shooting that the was
did state that her husband been depressed, to the Penal Code. indicated, statutory hereafter are references all otherwise
1 Unless finding. trial court struck use 2 The
accident, and that had been well things for them. She asked going sev-
eral times how her husband was. At one she told point “He McHenry,
went crazy, you know. I’ve told you before. He pulled hammer
back. We were in the bedroom. He was so depressed. He had been with
the kids all At day.” that point, appellant became hysterical again. asked if
McHenry knew the location of the anyone gun. Appellant
pointed said, to a neighbor’s house and “It’s in there.” She walked over
to the neighbor’s back, said, garage, pointed toward the “I it put up
there from the away kids.” could McHenry see the on of a gun top hot-
water heater.
Upon house, returning stated, the street in front of her appellant
“He was He depressed. went and started crazy towards me. His hand
went into his pocket. And I know he carries a there. And then he gun
pulled the hammer She stated, back.” became hysterical again then
“It was an accident. I didn’t have malice.” any
Appellant asked if he she McHenry needed an He thought attorney.
stated that she could call if Barner, one she wished. Sergeant returning house,
from the advised that it McHenry would be best to take appel-
lant to the police station. asked McHenry appellant if she wanted to go
to the station with him. She agreed.
On the station, to the way asked if she needed an again at-
torney. told her McHenry that she could call one. She then asked if she
could stop a church allowed her pray. McHenry to do so. station,
Once at the was brought into the employee lounge.
When bathroom, she asked to use the told her that a female McHenry
clerk would her and that accompany she could not wash her hands be-
cause a test would be performed stated, Appellant them. “You know
I fired the gun. stated, I told you.” Appellant also “I didn’t mean to
hurt him.” Again, appellant asked if she needed an attorney
told that Instead, she could call one. she called find out if her chil-
dren were all right. Arnheiter,
Janice a friend of was then appellant, to see brought Arnheiter,
her. told “He was depressed. The was on the gun
shelf and he went when crazy he saw it. He reached and I
grabbed it. He pulled the hammer back and it went off. I was holding was,
the gun. know, My finger where it went you off.” *8 Officer McHenry to interview room was then taken an of She was advised Wald, at the station. police senior clerk
and Lynne in the the kept gun that she had stated rights. Appellant
her Miranda3 broke in. At to to if someone get easiest place
closet because was the the but later how to use gun, she did know she stated that point,
one weapon many to another her how shoot taught
she stated that Curt had died, asked use Curt When informed that before.
years day. the following tennis date for
the to break a phone house, for additional premises the officers searched the
Back at the stairs, bedroom, the
bullets, At of the near top did not find the any. but the corner wall. up against
the found a blue shirt wadded the officers found, bedroom, revolver a were one for a closet the two boxes visible hats and The were behind barely
and one for ammunition. boxes Five were from the box ammunition. missing
shoe boxes. bullets Jindrich, coroner, the The cause performed autopsy.
Ervin the county be Jindrich stated that was determined to wound. gunshot
of death five
the chest at a inches right point approximately bullet entered the the The bullet traversed the right body. right midline of the confined, lung
thoracic in which the is cavity, space generally within went from left slightly right
horizontal The bullet plane. the distance of the from the gun Jindrich unable determine
body. skin. further because no residue was found on the He stat-
body powder at time of shooting.
ed that Curt could have been bent over Corazza, with the California Department
William a criminalist
Justice, from shirt and the recovered weapon examined the blue smoke shirt bullet holes and
neighbor’s contained garage. residues, bullet the shirt at passing through consistent with a
powder calculations, “the shirt to the criminalist’s best
close range. According It was not weapon. wrapped tightly
was somewhat bunched above the ” around it . ... has five- cylinder Corazza noted that
Regarding weapon, of opening of smoke residue around the
bullet Two circles capacity. fired that the had been two weapon in the indicated cylinder
chambers weapon that the could explained
times its last Corazza cleaning. since 86 S.Ct. (1966) 384 L.Ed.2d Arizona U.S. 3 Miranda v.
A.L.R.3d 974]. *9 action, in
operate both and double In double it single action. is neces- action, the to fire
sary only pull weapon. In trigger single first, must
hammer be then pulled trigger back The pulled. weapon operable
was and could accidently discharge not by jarring.
Corazza that be possible push stated would hammer back action,
while in facing the With the five gun. gun operating single only
pounds pressure of on the was to fire the trigger required weapon once
the hammer was also testified that pulled back. Corazza the weapon rounds,
contained two and live of was expended rounds three one which
at the of the underneath the hammer. In order to reach this top cylinder it was his that the must have fired
configuration, opinion weapon been
twice; then, was and hammer either cocked let down weapon or it and rotated
gently was cocked was partially cylinder manually. de- prosecution claimed that the and shooting premeditated killed *of
liberate murder. It that her husband because alleged and for financial
jealousy gain. five lived Novato and had children. and her husband
Appellant States Customs Service.
Curt worked an the United investigator as him to from the home often. away quite Appellant
His work caused be could time at so that he more change spend
had asked him to jobs to move not asked Curt out
home. When this did happen, in with Frank and moved
the house. He did so on February
Orrantia, customs investigator. another marriage February for dissolution petition filed a thereafter, Richard and asked Attorney Barry she Soon contacted
1979. she Curt to which draw marital settlement agreement
him to aup its received the house and the agreement, appellant
had agreed. Under cars, from sale of proceeds their and the one of two
furnishings, receive the entire interest Curt was to car to certain debts. pay
other addition, the children would retirement benefits.
federal Civil Service Curt life insurance policy. his government named beneficiaries of
be $875 per $325 a month spousal support to pay be obligated
would child support.
month death, her her that, husband’s in the event told appellant
Barry all up was giving her she He also told would cease. support
spousal be might these benefits retirement benefits
claim to Curt’s before Some time under the agreement. property more than her
worth *10 not appellant a from message office received Barry’s
the end of August, to and was have surgery because she going file the final judgment
to benefits. employment covered Curt’s expenses
wanted the medical was
No final entered. judgment order a obtaining restraining with about
Appellant spoke Barry also her of husband that she was afraid her husband. She told Barry
against her, that she said he had never hurt Although
and he was volatile. very of her. She also stated striking to be on just verge
he seemed always with the children and disappear
that was he would take she afraid a at the gun Curt sometimes wore
them. further stated that Appellant
house. Banks, spe- personnel staffing a States Customs United
Marguerite with $43,000 a
cialist, policy had a life insurance testified that Curt course, the a of As matter clause for accidental death.
double indemnity Sep- As of were and the children. appellant
beneficiaries of the policy to 8, 1979, annuity appellant would a pay monthly
tember the policy $864 October
$685 each child. On benefits of yearly be- appellant’s were filed on claim forms shooting,
one month after with a the forms along
half under the An policy. attorney presented at- benefits. The
letter that claim was for the children’s explaining agreement. the marital settlement
torney copy a enclosed home, he dating Mary
After Curt the Novato began moved out of Ac- began living together.
Ann Sometime around May, they Steinbeck. Steinbeck, proceedings was relieved when divorce Curt
cording a in Wash- job new get promotion
started. He was expecting that was to move with planning testified she
ington, D.C. and Steinbeck Sep- on him wear a and stated that denied she ever saw gun She
him. not pants carrying gun. he and was tight
tember was wearing efforts to meet that made frantic appellant
Several witnesses testified Warner, testified investigator, a customs criminal
Steinbeck. Richard where him about Steinbeck’s background appellant questioned Curt and was happy looking
she worked. further stated that seemed He his Washington.
forward to transfer to Mouchka, appellant a friend of testified that appellant,
Marie many Mouchka to find Steinbeck. called
trying desperately
times of her search. Once stated report appellant on progress
she was going go to Fresno because she had heard that Steinbeck
worked occasions, there. On different appellant had the inter- operator
rupt Mouchka’s phone conversations with emergency messages. When line, got she would some relay information about the
divorce proceedings or her finances. Orrantia,
Frank Curt, colleague also reported numerous conver-
sations with appellant. He testified that told him several times
that Curt appeared depressed and that she was afraid he commit might
suicide. She also asked him about Steinbeck. On Orrantia’s May
phone conversation with his ex-wife was interrupted operator
who stated that appellant wanted to talk himto because of an emergen-
cy. Appellant told Orrantia that Curt had threatened her and that she
had called the police. Orrantia with spoke Curt and then called appel-
lant. He told her that he did not think Curt had threatened her. At that
point, appellant appeared to get upset with him and said that Curt had
made threats in the past. 10th,
On July appellant called the Department Novato Police to re-
quest an officer. Officer McHenry responded. Appellant told him that
Curt had been her since the threatening separation that he had
called her several times drunk or She stated enraged. that on one occa-
sion Curt had taken a out of gun pocket his it in a exposed threat-
ening manner. Since Curt was over later that coming she wanted day,
an officer present. advised her to McHenry keep the doors locked and came,
said that if Curt she could call the police department and an of-
ficer would be sent to her home. also asked the Appellant officer if she to,
should purchase a He advised her gun. not if she did especially not
know how to use one. Mouchka,
On Mother’s Day, appellant called Ms. who worked as a Mouchka,
nurse at the Suicide Prevention Center. According appel-
lant said that Curt had ruined the day late for dinner. He by coming
was still at the house and appellant wanted to know how Valiums many said,
it would God, take to harm someone. Mouchka laughingly “My
Suzanna, you’re to kill him.” I want going Appellant replied, “No. just him for him to tell me the truth who that enough woman is.” wine,
When appellant said that she was the Valiums in crushing
Mouchka told her that was a lethal combination. Appellant responded,
“Oh, don’t be overly Appellant dramatic.” called back later to say
Curt had refused the wine because it tasted bitter. she which with appellant a conversation also reported
Mouchka that comment Mouchka’s To August. took place
thought forward, re- going was the fact that the divorce
had to face but he was divorce papers the final up to pick that Curt wanted
plied to be divorced. was not going that she stated
not to. going appellant’s work on Stavish, hired to do some carpenter,
Joe with her a involved sexually He that he became stated May.
house weeks. for several lasted relationship he was hired. The
few weeks after with appellant six conversations that he had about
Stavish testified $5,000 to kill him stated that she offered her husband. He killing
about task, in- accomplishing means of various suggested
Curt. Appellant was at work in while he him underground garage in an
cluding shooting if money would more get stated that she
Hawaii. Appellant allegedly and demand- her offer rejected killed while on Stavish duty.
Curt were to her He also out $10,000, pointed was too much.
ed which she said *12 Stavish finally got she had suggested. Curt than killing
better ways the con- told her to stop subject
tired of her talk about hearing Curt herself. Stavish she would kill that Appellant replied
versations. fire the weapon quickly. to Curt and
advised her to stand close inci- him the Valium told about reported appellant
Stavish also that wine to to try Valium in Curt’s either
dent. She said that she had put not recall which of these mo-
kill him or to him to He could put sleep.
tives she had expressed. home appellant’s he came testimony, by to Stavish’s trial
According She 2d, project. a particular to see if she had finished
on September doing that she would be such a miserable person
told him that Curt was that he had conceded out of his Stavish misery.
him a favor to him put hearing. this statement at the preliminary
not mentioned his for plans to about appellant
Stavish testified that he had talked of 14 to Sta- age he was From the younger. his father when
killing various means. Stavish his father killing by
vish seriously contemplated with he appellant his conversations that about half of during
also stated par- He stated that he or liquor.
was under the of marijuana influence He to let off steam. to allow appellant in the conversations
ticipated demeanor, “[sjhe’d get As her fantasizing. that she was
thought where in catatonic state like get and then she’d freeze and
really upset .... She motionless, upset very, very but obviously
she’d be like
couldn’t And she’d Her voice would choke off get upset. talk. really just
completely.”
Paulette appellant Baccioco met in 1978 at Dominican College. Ap- complained to Baccioco her financial after
pellant problems about her Baccioco,
separation appellant from Curt. refused According get husband, that stated to Baccioco if she killed her her financial
job June, dis-
problems would be solved. From March through appellant
cussed “frequently.” Curt mentioned that she would killing $100,000
receive a less than the insurance if coverage little from Curt
died.
Baccioco also testified about call from in which telephone appellant
she stated she was Curt wine with Valium. She trying to give
asked to drink it. refused get Baccioco how she could Curt Baccioco
help. her help told that Stavish would not kill
Finally, Baccioco stated, witness, “You are so bright,
Curt. According cross-exam- help can me out a to kill husband.” On
you way my figure
ination, about these conversa- forgotten Baccioco admitted she had until a friend to whom she had
tions reminded after Curt’s death
repeated discussions. *13 said appellant the before the Libby shooting
Pat testified day to Libby, the next day. According
Curt was over to house the coming tomorrow, would if she
appellant got through everything told her “that died, death was told that Curt’s appellant Libby
be After Curt okay.” the children while stopped for the best because he had
probably seeing
he was alive. counselor, Mercer, singly saw the Wickershams
Rae Ellen a marriage told March to June. Appellant occasions from
and on several together come want a and wanted Curt to back.
Mercer that did not divorce she a in gun an in which she found also Mercer about incident
She told what meant to do when she know she
Curt’s car. She stated that did not Mercer, emo- was appellant hand. to According
she had the in her gun
tional, occasionally hysterical. on “spiritual reading” a performed
Anna Satenstein 30th when Curt meeting April 21st. returned on Appellant
April tell her what was at that occurring
with Mercer and asked Satenstein to Satenstein refused.
meeting. in her defense. She said that Curt occasional-
Appellant testified own he called out at night. Although in his waistband if was
ly gun carried so, her, do based potential
Curt had never hit she he had the to thought Watts during as a officer performed police violent acts he had denied to locate Stein-
riots and as a soldier in Korea. Appellant trying all she she had waived rights
beck. She further stated that knew she had not benefits. She stated that
Curt’s insurance and retirement She denied the dissolution proceedings.
asked her attorney delay Stavish, Baccioco, related threatening by the various statements
making Regard- related by Libby.
and Mouchka and the statement postmortem Stavish, first brought up subject killing she said that he had
ing $10,000. Appellant rejected suggestion
Curt to do it for offering stolen lumber from her. She also stated that Stavish had
immediately. of Valium in claimed that five
Appellant put only milligrams she him when he was upset.
Curt’s wine and did so to calm down simply compartment, the incident
Concerning involving gun glove compartment to take testified that she had opened glove items top
out and first-aid kit. The was on of those maps, gun some Curt, When who was had to be in order to retrieve them. removed car, he became scared gun, side of the saw driver’s
approaching Curt attempted “strug- “erratic.” According appellant, acted have gun him that he should not with that told
gle Appellant gun.” car with the children present. her car ran incident in which testified about another twice She ascribed Curt’s, the front. rear and once from
into once from the inattention, being admitted frustrated she although
the incident to things to collect his and leave she had told him day because
upset 8th. September she saw him before *14 This was the last time
for good. was involved 5, 1979, the which weapon purchased
On July her gun protect she the bought She testified that
in the shooting. the house for protection. gun that there had been a always
home and came stated that Curt shooting, appellant the of the
Concerning day terms, Curt and friendly a.m. were They
to the house about 10:30 Ap- the to lunch. children taking minor house before repairs
made some back, came him. When Curt Curt’s things
pellant began gathering closet in which which were some of his shirts
they began pack shirts from Curt’s removing When appellant began gun kept. with a asked, “slight “What’s that closet, gun?” he saw the gun answered, “It’s mine.” With her in his voice.” Appellant
bit of alarm Afraid towards me.” Curt, he was moving
back to “sensed with five or six the weapon up she scooped
that he would take gun, was a back, There gun. Curt reached to get When she turned
shirts. shot, Curt reached behind After the and the went off. gun
short scuffle her left the room and took gun, appellant
him. that he had a Thinking room, did not return to the
son, in the She doorway. who was standing the emergency and made in the garage
but placed gun neighbor’s to kill her fire the or weapon denied intending calls.
phone
husband. work, testi- Arnheiter, to do carpentry
Janice who had hired Stavish addition, her that he he told
fied that he was not believable.
discussed his with Baccioco. testimony for hon- reputation witnesses testified concerning appellant’s
Various Francisco police included a San These witnesses nonviolence.
esty her and her
captain, priest, psychiatrist. the instructions the court discussed
Before final to the jury, argument was as follows:
with both counsel. The discussion excus- concerning was requested [CALJIC 5.00] No.
“The Court: asked for that. homicide, I the District Attorney
able lawful act. believe that, I assume?
“You have no objection No, I do not.
“[Defense Counsel]: last, lesser-included And, Defendant did request
“The Court:
instructions, 17.10, involuntary introductory, particularly instructions, 8.45, 8.46, and 3.32.
manslaughter
“Is that what is? request your Yes, Honor. your
“[Defense Counsel]: *15 the use instruction concerning the the jury I’ll also give
“The Court:
of a firearm. to that on the object ground The Defendant does
“[Defense Counsel]: murder, A it’s immaterial. it’s, finding with respect first-degree
is ineffective. man-
“And, involuntary with to the crime of secondly, respect definition, a gun the crime would exclude use of its
slaughter, by very firing the instead of it. accidentally sense using gun 17.19, instruction, nevertheless, I’ll the use Okay. give
“The Court: find the De- they the in the event with a verdict form for
together jury manslaughter. or involuntary
fendant of either murder guilty the firearm over the
“I’ll them the verdict form for the use of objection.”
Defendant’s
The court the on excusable homicide thereupon instructed
(CALJIC (CALJIC 5.00), murder No. 8.10 No. definitions of 8.11.(1979 rev.)),
(1979 rev.)) (CALJIC malice No. aforethought (CALJIC 8.20
first deliberate murder No. premeditated and degree
(1979 rev.)), as a included of- necessarily and involuntary manslaughter (1979 3.32, (1976 (CALJIC rev.), 8.46, 17.10,
fense 8.74 Nos. 8.45
rev.), 8.72).
II. contends that the trial court erred in not sua instructing voluntary manslaughter. on second murder and
sponte degree two con
The trial court functions both as a neutral arbiter between role the law. This requires and as
testing parties jury’s guide applicable particular
the court instruct the on the law each fully cases,
case. “‘It in criminal even in absence is settled that of law principles court must instruct on the
request, general trial general the evidence.
relevant to issues raised by [Citations.] case those principles closely of law are
principles governing court, and which are neces with the facts before connected
openly St. Martin (People of the case.’
sary understanding jury’s That obli
(1970) Cal.Rptr. 390].) 463 P.2d 1 Cal.3d 531 [83 instructions on lesser included has been held to include
gation giving as whether all of the ele question when
offenses the evidence raises (see, v. Hood present e.g., offense were
ments of charged when 370]), 462 P.2d but not 1 Cal.3d
324
there is no evidence that the offense was less than that charged. (People (1971) 469,
v. Noah 441, 5 Cal.3d 479 487 Cal.Rptr. P.2d 1009]; [96 (1969) 759, 462, v. Osuna 70 Cal.2d
People 767 Cal.Rptr. 452 [76
P.2d 678].)” (1974) 703, v. Sedeno 10 (People Cal.3d 715-716 [112 1, 518
Cal.Rptr. P.2d 913].)
The fulfillment of this ensures obligation that the will consider jury
the full range possible verdicts—not limited by strategy, igno
rance, or mistakes of the should not be parties. jury constrained by
the fact that the and defense prosecution have chosen to focus on cer
tain theories. “Just as the have no interest in obtain People legitimate a conviction of a
ing offense than that established the evi greater
dence, a defendant has to an when right acquittal no that evidence is Martin,
sufficient to establish a lesser included offense. v. St. (People 524, (Sedeno, 533.)” 716.) 1 Cal.3d 10 Cal.3d at Fur
supra, supra, p.
thermore, where counsel is not aware of alternative verdicts or incor case, believes
rectly them to be irrelevant to the the trial court’s action
will avoid an unwarranted choice for the and will en all-or-nothing jury
sure that the verdict is no harsher or more lenient than the evidence These ac policies persons
merits. reflect concern both for the rights
cused of crimes and for the overall administration of justice. Sedeno, 716,
In 10 Cal. 3d at this court stated that the page supra,
trial court was to instruct on included offenses and necessarily obligated deserv instructions “whenever there is evidence give requested ‘any v. Carmen consideration whatsoever ....’”
ing any (Citing People 768,
(1951) 281].) 773 P.2d v. Flannel 36 Cal.2d [228 684-685, 84,
(1979) 668, 12 603 Cal.Rptr. 25 Cal.3d footnote [160 instruc ], disapproved suggestion “jury
P.2d the lead opinion no matter how presented, must whenever evidence is any
tions be given diminished capacity. instructions on
weak” in the context of requested
(Italics the court need only stated that opinion The lead original.) to “de evidence sufficient if the accused proffers instruction i.e., from which a com jury ‘evidence
serve consideration by jury, the particular have concluded’” of reasonable men could
posed (At from Peo did p. quoting
facts the instruction exist. underlying 502 P.2d 8 Cal.3d v. Carr
ple
513].) to determine the trial court
This does not require—or permit—the obligation the court from any It frees simply of witnesses.
credibility find to reasonably which the could not theories to the
present *17 had “consumed accused Flannel, mere fact that the Thus, the in
exist. This does not require—or permit—the trial court to determine the credibility of witnesses. It simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to exist. Thus, in Flannel, the mere fact that the accused had “consumed relatively small amounts of alcohol over a long period of time” (2)5 time” of long period over of alcohol small amounts relatively diminished an instruction on 685) did not warrant giving 3d at p. Cal.
capacity. be utilized deter discuss the standard not directly
Flannel did necessarily sua on sponte to instruct duty the has a when court
mining the same that However, require would seem to logic
included offenses. obligated The court is not trial apply.4 should generally
standard the evi offenses unless included necessarily instruct on sponte sua (See v. Ramos People of such offenses. a conviction
dence would justify 266, 908].) P.2d This 639
(1982) Cal.Rptr. 30 Cal.3d 582 [180 the relevant focused on properly the attention is
rule ensures that jury’s theories.
legal due to Sedeño, distinguished voluntary manslaughter this court of purposes offenses for
heat of from included passion necessarily other killing an intentional Normally, to instruct sua duty sponte. murder, is man killing voluntary least but such a degree
is at second upon in a heat of passion if “shown have been committed
slaughter However, from the unless appears
sufficient .... provocation [H] passion in the heat of case was committed killing that
prosecution’s to raise burden is on the defendant upon provocation sufficient was present. doubt minds that malice jurors
a reasonable in the of Therefore, must (10 719.) a court in “[bjefore Cal.3d at p.
[Citation.]” heat as a passion
struct sua on in the of voluntary manslaughter sponte be
lesser within there must either some evi offense included murder of the or some killing
dence that heat of at time passion present that
reason for the court that the defendant is on relying theory to know (Ibid.) as defense.” manslaughter Flannel. (4)
This standard is with that promulgated compatible manslaughter trial need instruct voluntary court not sua on sponte
due to heat of unless there is evidence sufficient to “deserve passion i.e., composed
consideration ‘evidence from which by jury, the accused acted inten-
reasonable men could have concluded’” (Flannel, 684.) 3d without 25 Cal. at Once
tionally supra, p. but malice. conclusion, this trial court is
there is sufficient to warrant evidence instruct
obligated to on theory. 4 Indeed, 8 Cal.3d 504 P.2d Cantrell Flannel, sponte (Flannel, 1256], one sua duties. disapproved of the cases concerned 684-685, 12.)
supra, pp. fn. Cal.3d at defenses, held
Regarding instructions, Sedeño that “the duty
sua sponte, particular defenses and their relevance to the of charged
fense arises if it only appears defendant is on such a relying
defense, or if there is substantial evidence supportive such a defense
and the defense is not inconsistent with the defendant’s of the theory Indeed,
case. this limitation on the of the duty trial court is necessary
not only because would be burdensome to unduly require more of tri
al but judges, also because of the potential prejudice defendants if
instructions were given defenses inconsistent with the relied theory (Sedeno,
upon.” 716.) 10 Cal.3d at supra, p. standards, delineated
Having the applicable this court must next de-
cide whether the evidence at trial required sua sponte instructions on
second murder degree crimes, and voluntary These manslaughter. of
course, are offenses included within first necessarily degree murder.
Appellant advances two possible theories of man voluntary
slaughter—heat of passion and unreasonable self-defense. (1976) 509, v.
People 415, 18 Cal.3d 515 Berry 556 [134
P.2d this 777], (1946) court v. Valentine quoted People 28 Cal.2d
139 P.2d regarding appropriate instructions to be given [169 1]
jury upon a claim of due to heat of voluntary manslaughter passion:
“‘The is ... to be admonished and advised the court that this by
heat of passion must be such a as would passion be aroused in naturally
the mind of an reasonable under the ordinarily person facts and given
circumstances, that, no defendant set his own consequently, may up
standard of conduct and or excuse himself because in fact his justify aroused, were
passions unless further the believe that the facts and
circumstances were sufficient to arouse the of the passions ordinarily
reasonable man.. .. For the fundamental of the is whether or inquiry was, act,
not the defendant’s reason at the time of his so disturbed or never, course,
obscured some passion—not fear and of necessarily such passion an extent as would render revenge—to ordinary
men of liable to act or without average disposition rashly due delibera reflection,
tion and this passion and from rather than from judgment.’”
To or “reasonable element of this satisfy objective person” must be passion
form of the accused’s heat voluntary manslaughter, (Sedeno, 719.)
due to “sufficient 10 Cal.3d at provocation.” supra, p.
However, “there is no specific type as this court stated Berry, 192[5] section and ... verbal
provocation required by provocation may (18 515.)
be sufficient.” Cal.3d at p. manslaughter.
5 Section 192 defines under actual in that the actor be requires element subjective at time of homicide. “In passion
fluence of a strong in the of ex P.2d course
Borchers Cal.2d 97] used in the statute passion’ defining ‘heat
plaining phrase mean or ‘an ‘rage’ we out need not
manslaughter pointed ‘passion’ intense, or enthusiastic high-wrought but be
ger’ may any ‘[vjiolent, a heat of
emotion’ there ‘that defendant was aroused to and concluded ’ a series of time .... period of events over a considerable “passion” by
(50 515.) 329.)” p. 18 Cal.3d at How Cal.2d at p. (Berry, supra,
ever, if between the and the elapsed provocation sufficient time has return, the reason is not passion killing
fatal blow for to subside and must act under the smart of
voluntary manslaughter—“the assailant (CALJIC (1979
that sudden heat of No. 8.42 quarrel passion.” or
rev.).) *19 case, evidence of in there substantial present certainly
In the is after shortly who observed appellant
tense emotion. Two officers police her of statements at Many
the described her as shooting “hysterical.” addition, witnesses testified that were several time unintelligible. with Ann Mary Curt’s involvement very was over distraught
Steinbeck. under
However, of even there is no evidence virtually provocation, testified appellant. Appellant of favorable to
view the evidence most for minutes approximately
that she and Curt were in bedroom his things together, going
before the fatal incident. were They getting as She described him reminiscing. “very and
through photographs, old was, think there’s any last he her “Do
nostalgic.” you The asked thing answered, “No.” She get together?” we’d ever back
hope of the victim’s grabbing provocation source only possible Curt for possession that she with struggled testified gun. Appellant if he use the gun she was afraid he would implied
of the gun by threats reported background
obtained Given possession.
victim, person appellant’s a reasonable could have found that jury nature, have been overcome with of this would faced an attack
position, the attacker. fear and acted to
by repel however, would meet all the
This of voluntary manslaughter, theory has deemed The Legislature self-defense. of reasonable
requirements man- than voluntary homicide rather
such to be justifiable self-defense Hence, not instruct on heat-of- 197.) court should (§ trial
slaughter.
passion voluntary where the manslaughter same facts would give rise to Flannel, (See of reasonable finding self-defense.6 25 Cal. 3d at supra, 678;
p. (1939) v. Mitchell 14 Cal.2d People 241-242 P.2d [93 (1937)
121]; v. Manzo Cal.2d 598-599 119].) P.2d
Whether or not the evidence warranted an instruction on heat of pas
sion, the alternative theory unreasonable self-defense was certainly
raised “An by facts. honest but unreasonable belief that it is
necessary to defend oneself from imminent to life or peril great bodily
injury malice negates the mental element aforethought, for necessary
murder, so that offense is reduced to chargeable manslaughter.” Flannel,
(People omitted.) 25 Cal.3d at supra, p. italics
Based on appellant’s (1) could have testimony, found that she
picked up the after her gun husband had noticed it and because only it;
she divined that he was over to take coming he for the grabbed her; (3)
gun attempted to take it from she recalled at that moment
a previous incident in he her which had of a fought possession gun.
Other evidence established that had threats on her reported Furthermore,
life made her husband. certain of state appellant’s
ments lend to this Given these following shooting support theory.7
facts, the could have found that believed that appellant honestly
her life was in acted in accordance with that belief. danger
This with scenario is consistent appellant’s testimony except for the
cause of the fired. The “unreasonable gun self-defense” of being type is on an
voluntary premised intentional whereas manslaughter killing,
appellant testified that the went off accident in the midst of the gun This, however, does not a determination
struggle. preclude jury that
fact the out of fear. The was entitled to re- appellant pulled trigger
ject that which to portion appellant’s testimony sought explain still find that had not with
shooting appellant as an accident and acted (See (1969) 269 889 Cal.App.2d
malice. v. Shavers People [75
Cal.Rptr. 334].)
Hence, the evidence was sufficient to of unreason- justify finding have erred had it denied a
able self-defense and the trial court would (See (1959) v. Dewberry for instructions on this
request theory. obligation instruct to court was under an that the trial 6 Appellant does not contend sponte sua on reasonable self-defense. pocket. his And I know me. His hand went into crazy started towards 7 “He went crazy when he saw it. and he went gun gun “The was on the shelf
he carries a there.” grabbed it.” He reached for it and I
329 However, self-de unreasonable 852].) P.2d 51 Cal.2d purposes of “defenses” category Sedeno’s within
fense comes above, need trial court sua As noted sponte. to instruct
obligation is defendant that the “if appears it defense on a particular instruct
only supportive evidence defense, is substantial if there or on such a
relying the defen with inconsistent is not the defense a defense and
of such 716.) (Sedeno, supra, p. 10 Cal.3d at the case.” theory of
dant’s case, was an acci testified that present shooting
In the kill husband. It is clear from that did not intend to her
dent and she self-defense and that was not on unreasonable relying
record Thus, the with her defense. proffered
that this was inconsistent theory on unreasonable no to instruct self-de
trial court was under obligation Sedeno, (See
fense in the counsel. specific request by absence 717-718.) at pp.
supra, Cal.3d degree instructions on second further argues provocation existence of
murder should have been given. “[T]he murder the class of offense
which is not reduce ‘adequate’ [from that the de raise a reasonable doubt manslaughter] nevertheless may after, delibera upon,
fendant formed the intent to kill and carried out Valentine, at Cal.2d (People supra, premeditation.”
tion and 132; rev.).) Thus, evi see where the
p. also CALJIC No. 8.73 provocation
dence of would determination justify had the intent to kill as a direct response provo
accused formed required acted the trial court is immediately,
cation murder this fact that degree theory.
instructions on second under place
heated words were or a took between physical struggle exchanged be sufficient to raise may
the victim and the accused before fatality
a whether reasonable in the minds of the the ac regarding doubt jurors
cused in advance. planned killing case,
In the there was such The could present evidence. jury intent
have found that did not form the to kill her husband appellant her,
until after he had mentioned the come toward and tried to gun,
grab it from Even if the that was not jury her. found there sufficient that was
provocation response to warrant lethal and not tru appellant life,
ly in fear for her could have concluded that these activities her
affected decision kill Curt that she not or premeditated
deliberated.
Indeed, an instruction on second murder would have been re- degree even in
quired the absence of appellant’s Curt’s be- testimony regarding
havior. the evidence was sufficient to Although of justify finding
deliberation premeditation, such a was not finding compelled.
jury could have found that did not but appellant premeditate rather
acted a “sudden and unconsidered upon impulse[].” v. Fields (People
(1950) Hence, P.2d Cal.App.2d 190].) even if the jury [221 her did not
rejected testimony, rejection require conviction for (see
first murder. Unlike certain degree felony-murder situations 189), this is not a case which of first de- guilty either
§
gree murder or innocent of any charge.
Thus, the trial erred in court not sua on second de- instructing sponte murder. There was sufficient
gree evidence to warrant considera-
tion this alternative verdict. contends that error in this
Respondent any regard was invited that, defense
by counsel. It is even if the trial court was argued required offenses,
by evidence to instructions on included re necessarily counsel,
versal is required not because “defense and for intentionally,
tactical chose to limit the lesser included offenses to involun purposes,
tary manslaughter.”
The doctrine of invited error is an accused from designed prevent a reversal on because of an error made the trial court
gaining appeal
at his If counsel caused the trial intentionally behest. defense court to
err, complain cannot be heard to appeal.
However, because the trial court is with charged instructing it must be clear from the record that defense counsel
jury correctly,8 addition,
made an to the relevant instructions. In be express objection stake,
cause are at it also must be clear important accused rights and not out or mis ignorance counsel acted for tactical reasons
take.
The seminal case
invited error
is
v. Graham
concerning
There,
court found error in the trial court’s failure to instruct on voluntary diminished
involuntary due to manslaughter capacity.9 *22 obligation 8 “The to instruct on lesser included offenses exists even when as a matter only objects of trial tactics request expressly a defendant not fails to the instruction but Sedeno, (People supra, being given. 716.) p.
to its v. 10 Cal.3d at [Citations.]” jury 9 Thetrial court instructed the capacity negate that diminished could malice and voluntary manslaughter, could return a verdict of but it did not connect dimin- homi- error any in that case General Attorney argued relates, the Graham opinion counsel. As by was invited
cide instructions At ‘on the record.’ one instructions many formulated
“The trial court homi- proposed its whether a combination the court
point inquired said, I under- ‘As The court the attorneys.
cide instructions satisfied involuntary from which no evidence
stand, that there is everyone agrees that could found; of manslaughter the only type could be
manslaughter volun- proposed its The court read voluntary.’ would be
be found here stated, ‘That combination It then manslaughter instruction.
tary ’. to the law that’s... instruct as instructions would probably stated, ‘That’s the judge defense counsel interrupted
All three (Id., 317.) p. at
agreeable.’” “the trial was whether question posed
This court noted that motion on the its own
court’s to instruct duty affirmative be nulli of the case can law relevant to issues principles of
general (Id., 317-318.) pp. at
fied
waiver of defense counsel.”
353],
P.2d
Phillips op counsel strongly where defense
court had found such “invited error” (Id., at 580- pp. tactical reasons. certain instructions for
posed specific Graham, is Phillips the rule derived from 4.) fn. According sit in that only special could be responsibility negated
“that the court’s as expressly,
uation in which the defense counsel deliberately (Gra tactics, of an instruction.” to the rendition
matter of trial objected
ham, 318.) at p. supra, 71 Cal. 2d rule, stated, concerning Graham statutes required by
Such a 1259 and Former sections review of instructions. appellate
scope instruction review an court appellate may
1469 both that “‘an provided thereto was made modified, even no though objection refused or
given, were affect- court, of the defendant
in the lower if the substantial rights (Graham, 319.) supra, p. 71 Cal.2d at thereby.’”10
ed to com an accused’s right is to ensure that necessary
This rule stated forcefully “As the court
plete fully protected. instructions is (Id., 314-315.) gave no pp. ished at The court capacity to the lesser included offense. involuntary manslaughter from intoxication. instructions on due to unconsciousness states, re currently part, appellate may court also in relevant “The 10 Section 1259 modified, though objection was made any given,
view refused or even no instruction court, affected rights of the defendant were thereto in the lower if the substantial states, may court also review part, [appellate] “The thereby.” Section in relevant modified, objection though no was made thereto given, even any refused or instruction thereby.” rights of defendant were affected in the trial court if the substantial
332
People (1955) v. 860, Keelin 136 Cal.App.2d 520, 874 P.2d 56 [289
A.L.R.2d ‘Nevertheless, 355], error is nonetheless error is no less on
operative of deliberations because the erroneous instruction
may have been requested by all, counsel for the defense. After it is the
life and of the liberty defendant in a case such this as that is at hazard
in the trial and there is a continuing duty upon the part of the trial
court to see are instructed properly upon all matters
pertinent to their decision of the cause.’ if defense Accordingly, counsel or
suggests accedes to the erroneous instruction because of neglect or
mistake we error’; do not find ‘invited if counsel only expresses delib
erate tactical in purpose suggesting, or resisting, acceding to an instruc
tion, do we deem it to nullify trial court’s obligation to instruct (Id., 319.)
the cause.” at p.
The Graham court no found invited error regarding omitted
manslaughter instructions. Counsel expressed never objection tactical an on Rather, instruction involuntary manslaughter. record indi
cated a (I strategy as offering jury many different verdicts as possible.
d., 320.) at p. Counsel’s acceptance of an instruction on volun
tary which did not refer manslaughter to diminished explicitly capacity (Id.,
“could not 321.) have been” p. event, at In any invited. trial
court went toon instruct on the definition of statutory man voluntary
slaughter, thus implicitly removing consideration the defense of di (Id.,
minished capacity 321-322.) from the at jury. pp. (1969) 379, Mosher 1 379 People Cal.Rptr. Cal.3d 461 [82 659],
P.2d a trial court failed required certain instructions again due dimin voluntary manslaughter involuntary manslaughter error,
ished This court found there was invited since no capacity. did express counsel not a deliberate tactical purpose sug
“[d]efense
gesting, resisting, or to the erroneous instruction. acceding [Citation.]”
(Id., 393.) at p. instruction,
Even where counsel has an erroneous doc suggested error invoked counsel articulated tactical
trine invited is not unless (1976) (See 59 Cal.App.3d v. Watts People
basis the choice.
85-86, (1971) 22 Cal. fn. 2 v. Williams Cal.Rptr. 409]; People [79 re defense counsel’s [“Obviously,
App.3d Cal.Rptr. [99 103] in which not ploys, engagement were tactical
quest agreement v. Aikin error.”];
would invoke the doctrine of invited in which invited 251].) Those cases
Cal.App.3d
333 Graham, page 71 Cal.2d at in supra, reported are been found error has statements. explicit include such just
318 and a deliberate rule, express counsel must the Graham
Under fail before the instruction particular in to a
tactical purpose objecting that It is clear error. invited will be deemed instruction
ure that to the which has trial court in case. The this occurred objection
no such offenses, asked never included necessarily to instruct on
duty applicable simply The court murder.11 degree on second opinion for an
counsel man involuntary on instructions had requested
noted that appellant Defense counsel is?” asked, request what your “Is that
slaughter
answered, “Yes, Honor.” your to an ex- equivalent
Needless to the absence of a is not say, request
press particular tactical If a request counsel’s failure to objection. rule, the
instruction were deemed sufficient to the invited error satisfy
pivotal role and of the trial court would be rendered duty meaningless.
Furthermore, mistakes the ig- defendants would suffer from greatly counsel,
norance their even the trial court could have acted to though Graham rule case,
prevent the it is injustice. present the to Applying
clear that counsel did re- not make an tactical the express objection
quired instructions. however,
Respondent, as argues that as court can long reviewing
infer from the record a as whole defense counsel made a deliberate
tactical decision not to on of- request instructions included necessarily
fenses, the trial court’s error should be deemed Respondent invited. 82, v. Tidwell (1970)
refers to a statement People in 3 Cal.3d 87 [89 58, 473 P.2d anything
Cal.Rptr. 762], that the absence of “[i]n emphasize duty defen appropriate deem that the of counsel to criminal 11 “We in his dant instructions which preparation request includes careful of and all
judgment legal rests. necessary explain upon are theories which his defense all of court, however, support is would appears If it that there substantial evidence that defendant, by the court should ascertain defense inconsistent with that advanced theory. in from on alternative Such the defendant whether he wishes instructions by quiry theory inadvertently not been overlooked will afford assurance that has Hood, 449; (Cf. supra, p. People 1 Cal.3d at v. Wade counsel. 116].) Cal.2d 348 P.2d degrees encompasses or lesser charged is one thát is divided into “When offense offenses, of is from which the could conclude that lesser there evidence committed, theory it is fense been court must even if instruct the alternate obliging the rule the court inconsistent with the defense elected the defendant under supra.” (Sedeno, supra, 10 Cal.3d at to instruct on lesser included offenses discussed 7.) p. fn.
record disclosing counsel had ‘a deliberate tactical purpose sug- *25 instruction,’ or an
gesting, resisting, to we must that acceding assume
counsel failed to merely request additional instructions of because mistake,
neglect or which would be to insufficient the trial nullify
court’s to obligation instruct on all the properly jury issues present- (Italics
ed added.) in that case.”
It is clear that this states simply a conclusion about facts passage
of Tidwell and does a Graham not constitute of the stan- modification If
dard. the test for is invited error whether in “anything the record”
suggests a deliberate in tactical purpose request failing particular
instruction, invited then error would be found wherever the accused
a tactical riot reason to seek a necessarily included instruction. Since
there is a tactical reason not to want a of- always necessarily included
fense as an to force the to an alternative—namely, all-or-nothing effect,
choice—all situations would fit under that rule. the rule Graham, i.e.,
would the exact of an require opposite express statement not opposed counsel is offense necessarily included instructions
for tactical not reasons. such statement is in order Clearly, necessary
to trigger sponte the trial court’s sua duty.
Furthermore, each record to determine si- reviewing why counsel was difficult,
lent would not be but would call for only extremely delphic
powers. How can a decide if action of court counsel’s or lack reviewing mistake,
it is founded on trust? strategy, or ignorance, an
The case reveals the inherent of such present difficulty graphically in Counsel have believed that it was his client’s inter-
undertaking. may murder,
est to give involuntary three choices—first degree or a counsel not Alternatively, not verdict.
manslaughter, guilty may
have con- degree been aware for a second murder possible theory believed the trial court would
viction. counsel have Finally, may either failed notice the or
give the correct instructions and omission de- action as decision that instructions on second
accepted court’s murder not the evidence. From the record before
gree required by were court, which
this it to tell of these scenarios is correct. impossible is si-
Even if conclude that had remained this court were able to counsel decision, invited would not be found.
lent because a tactical error
Since court’s on the relevant theor- duty fully legal the trial to instruct counsel, error in instruc- omitting required
ies is not dependent upon
tions waived the failure of its counsel simply by cannot be aby party deliber- whether counsel issue centers on instructions. The
demand the instruct, whether counsel not to fully the court to fail caused
ately words, error, must be other desired a certain result.
subjectively
“invited.” discovery for the halls but forums
“Our courts are not gambling (1970) 1 Cal.3d v. St. Martin
truth.” (People counsel to assist is the of trial 390].) 463 P.2d It obligation At the same to the jury. all relevant instructions presenting
court
time, ultimate responsibility which bears the is trial court *26 objec- no tactical express there was the Since
properly instructing jury. case, in the trial court’s error in the by present
tion made counsel cannot be found to have murder degree to instruct second
failing “invited.”
been de necessarily on all included offenses
The failure to instruct have deter jury a defendant of the “constitutional to
prives right th.e v. evidence.” Mo presented (People
mine material issue the every 33]; 382 P.2d see
desto 59 Cal.2d 730 [31 Mosher, 391.) at error cannot 1 Cal.3d supra, p.
also People “[S]uch prob evidence it not finding reasonably
be cured the by weighing have convicted the defendant
able that a instructed would correctly jury (Sedeno, Cal.3d at cit p. the lesser included offense.” supra, Modesto, However, held in 730.) at this court 59 Cal.2d p.
ing supra, is to determine that al that “in some circumstances it possible
Sedeño erroneously lesser included offense was
though an instruction on a
omitted, omitted instruction was nec the factual the question posed by other, properly given resolved the defendant under
essarily adversely to to not be deemed have been
instructions. In such cases the issue should been resolved an
removed from the consideration since has jury’s context, no defendant since the
other can be the prejudice and there offense was only that the lesser support finding
evidence would (Sedeno, 10 Cal.3d at supra, has been rejected by jury.”
committed 721.)
p. Sedeño, erred in an instruction sua failing the trial court (10 capacity. due to diminished manslaughter on involuntary
sponte required jury 720.) Such an instruction would have p.
Cal.3d at without an intent had acted whether accused determine
specifically of the in- question as to the error was harmless kill malice. The degree second instructions on had received jury
tent to kill because re- necessarily had specifically to kill and
murder without an intent
jected (Id., a verdict of first theory by returning murder. at degree 721.) However,
p. harmless, the error was not as to the of mal- question
ice, since instructions on murder felony had removed this issue from the Thus,
jury’s consideration. did not jury necessarily reject theory (Ibid.)
that the accused lacked malice. case,
In the no present presented instruction with a jury of intentional homicide which
theory was not and deliber premeditated
ate. Once intentional, found that it had no killing Hence,
choice but to return a verdict of first murder. “the factu degree
al question the omitted posed by instruction”—whether had intent,
acted with malice and but without and delibera premeditation
tion—was not resolved to the defendant under “necessarily adversely
other, (Sedeno, instructions.” 10 Cal.3d at properly given supra, 721.)
p. Since the was not to decide whether required specifically nonpremeditated, committed an intentional but nondeli murder,
berate trial court’s error to instruct on second de failing murder cannot be deemed to be harmless. The must be
gree judgment
reversed.12
III.
The trial court erred to instruct sua by failing second de- sponte case,
gree murder. Given the evidence in this could have found
that appellant did not and deliberate. The error was in- premeditate not
vited inasmuch as trial counsel did not make an tactical express objec-
tion to required instructions. Nor was the error harmless within the Sedeño, because no other instruction
meaning presented
with a premedita- of intentional and malicious homicide theory lacking
tion and deliberation. is reversed. judgment
Mosk, J., Newman, J., Kaus, J., Broussard, J., J., con- Reynoso,
curred.
RICHARDSON, J.I
concur in the
under the
judgment,
compulsion
217,
(1969)
v. Graham
People Cal.Rptr. [78 and its we well conclude that de- progeny, might But for Graham
153]. reversed, is judgment does not consider other 12 Becausethe must be the court by appellant.
sues raised
337 murder degree instructions on second request to fense counsel’s failure decision, error which invited deliberate, constituting tactical a sua those instructions to trial court’s omission
would cure the defense counsel that the finding support The record
sponte. appears mur- degree first choice of verdicts narrowed the
deliberately jury’s
der, homicide. and excusable manslaughter, involuntary actually reveal counsel the record requires
Yet Graham ac or resisting, tactical purpose suggesting, a deliberate "expresse[d] ” added.) (P. 319, italics As majority an .... instruction
ceding no trial herein court states, defense counsel expressed
correctly Ac murder. instructions on second purpose degree
tactical foregoing Graham, error. finding no exists for invited under basis
cordingly, dis- view, should and possibly the Graham rule be reconsidered my
carded in of invited error favor of rule which would permit finding (See
based inferences drawn from the record. upon reasonable 762].) P.2d
Tidwell Cal.3d however, Graham, I for reconsideration of
Lacking majority support
concur in the under its judgment compulsion. for a was denied October 1982.
Respondent’s petition rehearing
Richardson, J., was be opinion petition of the that the should granted.