Opinion
[CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Discussion B through J.
Review Granted March 25, 1993.
Review Granted Previously published at: 38 Cal.App.4th 1111, 28 Cal.App.4th 1562, 18 Cal.App.4th 119, 33 Cal.App.4th 1287, 23 Cal.App.4th 400, 12 Cal.App.4th 481
Reprinted without change in 23 Cal.App.4th 400, to permit tracking pending review by the Supreme Court.
COUNSEL
Charles M. Sevilla and Cleary & Sevilla, San Diego, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., and Barry J.T. Carlton, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
BENKE, Associate Justice.
Appellant Howard Barton was convicted of voluntary manslaughter with a firearm use finding. He appeals, asserting numerous evidentiary and instructional errors.
FACTS
A. Prosecution Case
1. The First Encounter
On February 22, 1990, at approximately 10 a.m., 20-year-old Andrea Barton was driving west on Grand Avenue in Pacific Beach when she stopped for a red light. When the light turned green her car [15 Cal.Rptr.2d 650] stalled. Marco Sanchez, stopped behind her and honked his horn. Andrea started her car but it stalled again. Sanchez continued honking. Andrea " flipped Sanchez off." Sanchez drove around her. As Andrea again started her car and drove forward, appellant cut back so close into her lane it was necessary she take evasive action to avoid a collision. Sanchez continued ahead, finally turning off on a side street.
Andrea drove to Cass Street and turned. As she stopped at a light at Garnet Avenue, Sanchez drove up next to her and spat on the closed passenger window of her car.
Andrea drove to the nearby office of her father, appellant Howard Barton, and in tears told him what had occurred. Andrea and appellant got into appellant's truck and drove back to the location where Sanchez spat on Andrea's window. In his pants pocket appellant had a pistol which he was licensed to carry because of the large sums of money he routinely took to the bank for deposit.
2. The Second Encounter
As Appellant and Andrea returned to the corner of Garnet and Cass, they saw Sanchez's car parked in front of a Cal Store. Appellant parked his truck and he and Andrea went into the store looking for Sanchez. Andrea saw Sanchez and confronted him. At first the three talked but soon they began to argue. Appellant waived his finger at Sanchez. At one point a clerk heard appellant in a loud voice say to Sanchez " Goddamn you, you little...." The clerk was unable to hear the rest of the sentence. Sanchez, who appeared frightened and defensive, turned and walked from the store with Andrea and appellant following. Neither appellant nor Andrea asked the clerks to call the police.
The argument continued on the street. At one point Sanchez turned, walk a short distance away, turned back and stated " Well, do something about it, brother." Appellant walked up to Sanchez and the two argued while appellant waived his finger in Sanchez's face. Sanchez turned again and walked away. Appellant walked back to where Andrea was standing. At no time during their confrontation on the street did Sanchez assume a fighting stance.
Andrea went back into Cal Store and asked the clerks to call the police " ‘ cause that red car [Sanchez's] is going to get really thrashed."
Sanchez walked into a nearby business where his sister-in-law Delicia Goodwin was waiting for him. Sanchez told Goodwin, who had been in his car during the confrontations with Andrea, that the " lady [who gave them] the finger" had returned with her brother or father. Sanchez told Goodwin he would meet her across the street in the parking lot of the Home Federal Bank.
3. The Final Encounter
Sanchez left the store and ran to his car. As Sanchez got in, appellant ran and stood between the driver's door and the car. Appellant took his pistol from his pocket, held it in two hands, pointed it at Sanchez and told him to get out of the car and down on the ground. It appeared Sanchez was trying to put a key in the ignition. Appellant leaned in toward the car and stated " Put the knife away or I'll blow your head off." Appellant repeated the statement. As Sanchez began to slide across the seat toward the passenger door, appellant reached in a little farther and, holding the gun in his right hand, fired. Hit in the lower back, Sanchez opened the door, got out and stumbled up the street in the direction from where he had come.
Sanchez went to the store where he left his sister-in-law and fell to the floor. Sanchez died from the gunshot wound. Sanchez's keys were found on the floor where he fell.
Appellant walked around the car to where Andrea was standing and embraced her. Appellant then paced up and down with the pistol pointed at the ground. The police soon arrived and appellant was placed under arrest.
A police criminalist determined the shot was fired from a distance of from three and one-half to four feet from Sanchez. Sanchez's head was leaning down and toward [15 Cal.Rptr.2d 651] the passenger door when the shot was fired. The criminalist concluded such a position would most likely have resulted from Sanchez looking at the floor or trying to pick something up from the floor or trying to go to the other side of the car.
In Sanchez's car the police found a folding knife under the seat in the closed position, a pair of scissors partially covered by other items and two screwdrivers. On the street outside the car, the police recovered an unexpended cartridge and an expended cartridge from appellant's semi-automatic pistol.
B. Defense Case
After her encounter with Sanchez, Andrea drove to her father's nearby real estate office. Andrea was upset and crying. Appellant asked her what was wrong. She explained. Andrea testified her father was calm as she related the story. Appellant was concerned for Andrea's safety since he did not know why the man had acted in such a violent manner. Appellant asked her if she had taken the license number of the man's car. She said no but thought the man had parked on Garnet and it was still possible to get the number. Appellant said they should drive over and get it. They got in appellant's truck and drove to the location on Garnet where Andrea had last seen Sanchez's car. It did not appear to Andrea that her father was angry.
Appellant had his gun in his pocket when Andrea entered the office. He had a permit for the gun, carried it often and was not conscious he had it as he left the office.
The two drove to Garnet where Andrea saw Sanchez's car parked in front of Cal Store. As appellant pulled up behind the car, Andrea saw Sanchez in the store. Andrea and appellant got out of the truck and walked in.
As Andrea approached Sanchez, he recognized her and said " What do you want, bitch." As Andrea and Sanchez argued, appellant stood off to the side. Eventually appellant joined the discussion asking Sanchez why he had tried to run Andrea off the road. Appellant asked a clerk to call the police. Appellant told Sanchez arguing would solve nothing and stated he had asked the clerks to call the police so the matter could be resolved. Sanchez stated he had witnesses to the incident and the three walked out of the store. As they got to the sidewalk, Sanchez became angry and wanted to fight. Appellant told Sanchez he did not want to fight, the police were coming and he wanted to wait for them. Sanchez said he was going to get his father-in-law and his nephew. Andrea believed he was going to bring them back to fight with her father. As Sanchez walked away, appellant asked Andrea to go back in the store and make sure they had called the police.
Andrea went into Cal Store and asked one of the clerks if she had called the police. The clerk asked Andrea what happened and Andrea related the story.
As appellant waited on the sidewalk, he saw Sanchez come out of a store and walk rapidly up the street toward his car. Surprised at Sanchez's action, appellant followed. As Sanchez got in the car, appellant asked where he was going. Sanchez told appellant it was none of his " fucking" business. Appellant stepped between the open door and the car. Appellant stated the police were coming. Sanchez asked if appellant thought he could keep him there. Appellant stated he could try. It was appellant's intent to grab Sanchez's keys when he tried to start the car. Sanchez replied " Well, try this" and swung at appellant. Appellant stated he could see a blade in Sanchez's hand. Appellant fell against the door, took his gun from his pocket and chambered a round. To appellant's surprise, a live round was ejected from the gun. The gun was shaking in appellant's hand and it was necessary he hold it in two hands. Appellant told Sanchez several times to " freeze", put the knife on the ground and get out of the car. Sanchez made a fast movement toward appellant. Appellant closed his eyes and backed up. The gun discharged. Appellant stated he did not intend to shoot Sanchez. Appellant opened his eyes believing he had shot the windshield or dash of the car. Appellant saw Sanchez open the door and get out. [15 Cal.Rptr.2d 652] Appellant could see blood coming from Sanchez's mouth.
Sanchez's drivers license had been suspended since 1985. At the time of the shooting, there were 13 warrants for Sanchez's arrest based on failures to appear on traffic matters. The total bail on those warrants was $8,224.
Evidence was offered Sanchez had a propensity for violence.
DISCUSSION
A. Instruction on Voluntary Manslaughter
Appellant argues the trial court erred when, over defense objection, it instructed on the lesser included offense of voluntary manslaughter. Appellant contends the theories of voluntary manslaughter offered, i.e., heat of passion and unreasonable self-defense, were inconsistent with his defense of accidental homicide and the trial court had no authority to instruct, over his objection, on such contradictory theories of the case. The issue is complex. It is also troubling because there appears to be inconsistent California Supreme Court and Court of Appeal opinions on the matter (some arguably supportive of appellant's contention) and because of the ominous implications for the administration of justice should appellant's position prevail.
1. People v. Sedeno
Any discussion of the obligation to instruct sua sponte on lesser included offenses and defenses must begin with People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913. Sedeno succinctly summarizes the obligations and limitations on the giving of such instructions and forcefully presents the policy basis for the rules announced.
Sedeno states the rule the trial court must instruct, even in the absence of a request, on the general principles of law closely and openly connected with the facts of the case. That obligation includes " giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. " (People v. Sedeno, supra, 10 Cal.3d at p. 715, 112 Cal.Rptr. 1, 518 P.2d 913, italics added.) The obligation to so instruct exists even when as a matter of tactics the defense objects to the giving of such instruction.
The court in Sedeno, citing People v. St. Martin (1970) 1 Cal.3d 524, 533, 83 Cal.Rptr. 166, 463 P.2d 390, explains: " Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense." (People v. Sedeno, supra, 10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.) As Justice Peters stated in St. Martin, " Our courts are not gambling halls but forums for the discovery of truth." (People v. St. Martin, supra, 1 Cal.3d, at p. 533, 83 Cal.Rptr. 166, 463 P.2d 390; see also People v. Geiger (1984) 35 Cal.3d 510, 518-520, 199 Cal.Rptr. 45, 674 P.2d 1303 [establishing the right of defendants to instructions on lesser related offenses].)
The court in Sedeno then noted the duty to instruct on general principles closely and openly connected with the facts before the court also includes the obligation to instruct on defenses. This obligation, however, only exists if it appears the defendant is relying on the defense or if there is substantial evidence supporting the defense and it is not inconsistent with the defendant's theory of the case. The court states to require more would be burdensome to the trial court and might result in prejudice to the defendant. (People v. Sedeno, supra, 10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.)
Sedeno's discussion of the obligation to instruct on lesser included offenses and defenses at first seems straight-forward and easily applied. However, ambiguity in our use of the word defenses has resulted in inconsistent Supreme Court opinions which serve as the basis for appellant's claim of error.
The problem is that we use the word defenses in referring both to evidence that exonerates a defendant of any criminal liability, [15 Cal.Rptr.2d 653] i.e., self-defense, alibi, insanity (complete defenses) and evidence which reduces criminal liability from a higher to a lower degree, or from a greater to a lesser included or related offense, i.e., unreasonable self-defense, heat of passion (partial defenses). Generally the use of the term " defenses" to encompass both concepts is harmless. In dealing with the obligations and restrictions on the giving of lesser included instructions and instructions on defenses, it is not.
Heat of passion and unreasonable self-defense are " defenses", i.e., they reduce the defendant's criminal liability. Evidence of such defense also, however, " raises a question as to whether all of the elements of the charged offense were present" (People v. Sedeno, supra, 10 Cal.3d at p. 715, 112 Cal.Rptr. 1, 518 P.2d 913), and is thus also the basis for the required instruction on lesser included offenses. (The " defenses" of heat of passion, unreasonable self-defense and " diminished actuality" are all based on the elimination of a mental element necessary for a greater offense but not necessary for a lesser. (See People v. Flannel (1979) 25 Cal.3d 668, 674-680, 160 Cal.Rptr. 84, 603 P.2d 1.)
Since the trial court is obliged to instruct on lesser included offenses even over objection but not to instruct on defenses which are inconsistent with the defendant's theory of the case, the characterization of evidence reducing the charge to a lesser offense is crucial. Does such evidence present a lesser included offense about which the trial court is obliged to instruct even over objection, or does it present a defense which should not be instructed upon if inconsistent with the defendant's theory of the case?
The Sedeno court was sensitive to this potential problem. At the end of its discussion on the obligation to instruct on defenses and before applying the law announced to the particular facts of the case, the court inserted footnote seven. The first paragraph of that footnote emphasizes the duty of counsel to request all instructions necessary to explain the legal theories relied upon. The footnote states, however, if the court finds substantial evidence of a defense inconsistent with that advanced by the defendant, the court should inquire whether counsel wishes that instruction given. The court in the second paragraph of the footnote states: " When the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternative theory even if it is inconsistent with the defense elected by the defendant under the rules obliging the court to instruct on lesser included offenses discussed supra. " (People v. Sedeno, supra, 10 Cal.3d at p. 717, fn. 7, 112 Cal.Rptr. 1, 518 P.2d 913.)
Clearly this statement means that when evidence of a partial " defense" exists that would reduce a greater offense to a lesser, the court is required to instruct on that lesser included offense and the theories supporting it even if inconsistent with the defendant's theory of the case. Were this not so, the absolute requirement for sua sponte instruction on lesser included offenses would be swallowed by the rule that the court is not to instruct on defenses inconsistent with the defendant's theory of the case.
We conclude, therefore, the reasoning of Sedeno would reject appellant's claim the trial court erred in instructing over his objection on the lesser included offense of voluntary manslaughter based on theories of heat of passion and unreasonable self-defense. While those " defenses" were inconsistent with appellant's claim of accident, they were supported by substantial evidence and raised a question as to whether all the elements of the charged offense were present. The trial court was required to instruct on voluntary manslaughter based on both heat of passion and unreasonable self-defense. Appellant could not, based on his approach to the case, deny to the jury in reaching its verdict consideration of appropriate intermediate offenses. Courtrooms are not gambling halls.
[15 Cal.Rptr.2d 654] 2. People v. Wickersham
The problems in applying Sedeno begin with People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311. In Wickersham it was argued the trial court erred in failing to instruct sua sponte on second degree murder and voluntary manslaughter. Wickersham begins by repeating the rationale stated in Sedeno for the trial court's duty to instruct on lesser included offenses stating: " The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories." (32 Cal.3d at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311.) The court notes the rules ensure the jury will consider the full range of verdicts " not limited by the strategy, ignorance, or mistakes of the parties." (Ibid. )
The Wickersham court then repeated the rules for instruction on defenses developed by Sedeno. Such instruction is required if it appears the defendant is relying on the defense or if there is substantial evidence supportive of such defense and it is not inconsistent with the defendant's theory of the case. (People v. Wickersham, supra, 32 Cal.3d at p. 326, 185 Cal.Rptr. 436, 650 P.2d 311.)
The court then applied Sedeno to the claim the trial court erred in failing to instruct on the lesser offenses of second degree murder and voluntary manslaughter. The court noted two theories were advanced on appeal supportive of the giving of instruction on the lesser offense of voluntary manslaughter— heat of passion and unreasonable self-defense. The court rejected the argument for instruction on heat of passion noting no evidence of provocation. (People v. Wickersham, supra, 32 Cal.3d at pp. 326-327, 185 Cal.Rptr. 436, 650 P.2d 311.)
Now the problems begin. The court noted there was sufficient evidence to support the giving of an instruction on unreasonable self-defense. It then stated, however: " Hence, the evidence was sufficient to justify a finding of unreasonable self-defense and the trial court would have erred had it denied a request for instructions on this theory. [Citation.] However, unreasonable self-defense comes within Sedeno's category of ‘ defenses' for purposes of the obligation to instruct sua sponte. " (People v. Wickersham, supra, 32 Cal.3d at pp. 328-329, 185 Cal.Rptr. 436, 650 P.2d 311.) The court offers this determination without analysis. The court then repeated the rule sua sponte instruction on defenses was required only if the defendant was relying on that defense or there was substantial evidence supporting it and it was not inconsistent with the defendant's theory of the case. Wickersham notes while substantial evidence supported the defense, it was inconsistent with the defense of accident offered by the defendant and the trial court was under no " obligation" to instruct sua sponte on unreasonable self-defense.
We find this conclusion inexplicable and inconsistent with the theories and rationales developed in Sedeno — theories the court in Wickersham was attempting to apply.
Wickersham's statement that unreasonable self-defense comes within Sedeno's category of " defenses" is simply wrong and does violence to the policy basis for the instructional scheme defined in Sedeno and indeed in Wickersham. Unreasonable self-defense is a partial defense that serves to reduce murder to voluntary manslaughter by negation of the element of malice aforethought. (People v. Flannel, supra, 25 Cal.3d, at pp. 674-680, 160 Cal.Rptr. 84, 603 P.2d 1.) Under footnote 7 of Sedeno, a partial defense that serves to reduce an offense to a lesser degree or to a lesser offense must be instructed on even over the objection of a party. As noted, if this were not the case, then the parties could, by the manner in which they tried the case, deny to the jury the opportunity to return a verdict on the offense proved. (Indeed, it would appear in this respect Wickersham is not only inconsistent with Sedeno but with Flannel as well.) (See People v. Flannel, supra, 25 Cal.3d at pp. 680-683, 160 Cal.Rptr. 84, 603 P.2d 1.)
Not only does it appear Wickersham is inconsistent with Sedeno, it also appears inconsistent with itself. Immediately after concluding the trial court did not err in [15 Cal.Rptr.2d 655] failing to instruct sua sponte on voluntary manslaughter since the theory of voluntary manslaughter based on unreasonable self-defense was, in Wickersham, an inconsistent " defense", the court confronted the issue of the need to instruct on second degree murder.
Noting that provocation insufficient to reduce murder to voluntary manslaughter might, nonetheless, create a doubt as to deliberation and premeditation and thus reduce first degree murder to second degree murder, and finding evidence of such provocation, the court reversed on the basis the trial court had erred in failing to instruct on the lesser included offense of second degree murder. (People v. Wickersham, supra, 32 Cal.3d at pp. 329-330, 185 Cal.Rptr. 436, 650 P.2d 311.)
It is difficult to square this holding with the court's rejection of the need for a sua sponte instruction on unreasonable self-defense. Both provocation and unreasonable self-defense are theories which negate elements of greater offenses and allow the jury to convict the defendant of lesser crimes proved by the evidence. Both provocation and unreasonable self-defense were inconsistent with the defense of accident offered by the defendant. Still, an instruction on second degree murder was required sua sponte based on evidence of provocation while a sua sponte instruction on voluntary manslaughter based on unreasonable self-defense was not. We believe such holdings inconsistent.
3. Cases After Wickersham
In the wake of Wickersham there is confusion. In People v. Bobb (1989) 207 Cal.App.3d 88, 91, 254 Cal.Rptr. 707, the court stated: " The trial court has a duty sua sponte to instruct on necessarily included offenses which are not inconsistent with the defense. [Citations.]" This is certainly not the rule announced in either Sedeno or Wickersham. Instructions on lesser included offenses must be given even when inconsistent with the defendant's theory of the case and even over objection.
In People v. Rhodes (1989) 215 Cal.App.3d 470, 474, 263 Cal.Rptr. 603, the court states the rule for sua sponte instruction on defenses enunciated in Sedeno and then cites Wickersham for the proposition that the same rule applies to lesser included offenses. (See also People v. McKelvy (1987) 194 Cal.App.3d 694, 703-704, 239 Cal.Rptr. 782.) We note again, however, that to apply the sua sponte instruction rule applicable to defenses to lesser included offenses turns Sedeno on its head and permits the vice of allowing the parties to determine, based on tactics, the offenses the jury may consider.
This inversion of Sedeno was recognized in People v. Eilers (1991) 231 Cal.App.3d 288, 295-297, 282 Cal.Rptr. 252. In Eilers it was argued a trial court could not over objection instruct on a lesser included offense even if supported by substantial evidence. Citing People v. St. Martin, supra, 1 Cal.3d at page 533, 83 Cal.Rptr. 166, 463 P.2d 390, and People v. Geiger, supra, 35 Cal.3d at pages 519-520, 199 Cal.Rptr. 45, 674 P.2d 1303, the court reiterated the proposition the People had no legitimate interest in convicting a defendant of an offense greater than he committed nor did the defendant have a legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Eilers held the defense could not restrain the trial court from instructing on an appropriate lesser included offense.
Although not directly on point, recent decisions of our Supreme Court are also troubling. In People v. Saille (1991) 54 Cal.3d 1103, 2 Cal.Rptr.2d 364, 820 P.2d 588, the court was faced with the contention the trial court erred in failing to instruct sua sponte on the relationship of voluntary intoxication to the elements of premeditation and deliberation in a murder case. The court noted while the defense of diminished capacity had been abolished, a specific intent offense could still be reduced to a lesser degree or offense if the jury had a reasonable doubt of the existence of a mental element based on the effects of voluntary intoxication. The court stated, however, voluntary intoxication was not a " defense" . The court stated that with the demise of the defense of diminished capacity, voluntary intoxication " is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state." (Id. at p. 1119, 2 Cal.Rptr.2d 364, 820 P.2d 588.) Since voluntary intoxication was no longer a " defense," a defendant could request a pinpoint instruction on its application to the facts (see People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847), but no sua sponte instruction was required. (People v. Saille, supra, 54 Cal.3d at pp. 1117-1119, 2 Cal.Rptr.2d 364, 820 P.2d 588.)
[15 Cal.Rptr.2d 656] 4. Discussion
Appellant's argument the trial court erred in instructing over objection concerning voluntary manslaughter is based directly on Wickersham's pronouncement that unreasonable self-defense is a " defense" for purposes of determining the trial court's obligation to instruct sua sponte on the concept's impact on the malice element of murder. Appellant reasons since the " defense" of unreasonable self-defense was inconsistent with his defense of accident, the trial court was foreclosed from instructing both on the concept and on the crime of voluntary manslaughter that would exist if the jury found evidence supporting unreasonable self-defense.
While we are compelled by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, to comply with decisions of the California Supreme Court, we obviously cannot comply with inconsistent decisions. We conclude Wickersham's holding that unreasonable self-defense is a " defense" and that no obligation exists to instruct concerning it and concerning the lesser offense of voluntary manslaughter is in conflict with Sedeno. We find no evidence it was the intention of the court in Wickersham to overrule the holding in Sedeno.
We choose to be directed by Sedeno. If the trial court is foreclosed from instructing on lesser offenses demonstrated by the evidence simply because the parties believe it is to their tactical advantage to reject such instruction, then our courts become gambling halls more concerned with the " game" than with the ascertainment of truth or the doing of justice.
Since there was evidence supporting a finding of voluntary manslaughter based on heat of passion and unreasonable self-defense, the trial court acted correctly in instructing concerning those concepts even over appellant's objection.
See footnote 1, ante.
The judgment is affirmed.
NARES, J., concurs.
WIENER, Acting Presiding Justice, concurring.
I concur in the majority opinion's conclusion that notwithstanding seemingly contrary language in People v. Wickersham (1982) 32 Cal.3d 307, 329, 185 Cal.Rptr. 436, 650 P.2d 311, a trial court is obligated to instruct on a lesser included offense shown by the evidence even over a defendant's objection that the instruction is inconsistent with his or her defense. But even if we are wrong and Wickersham overrules People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913, the " no obligation to instruct" language in Wickersham means only that. To say a trial court does not have a duty to instruct is considerably different from saying the giving of such an instruction is forbidden. To quote the Attorney General's brief, " The courts do not live in T.H. White's ant society ... [‘ The fortress was entered by tunnels, and over the entrance to each tunnel, there was a notice which said: EVERYTHING NOT FORBIDDEN IS COMPULSORY BY NEW [15 Cal.Rptr.2d 657] ORDER’ ] White, T.H., The Book of Merlin, Ch. 7.)"
Moreover, at oral argument Barton's counsel acknowledged he would not be able to validly argue that the court erred in giving an instruction on voluntary manslaughter over objection if the information filed against Barton had expressly included that offense. I am unable to discern why a different result should be required if the offense of voluntary manslaughter is only impliedly charged as a necessarily included offense within the single charged count of murder. If the form of the accusatory pleadings were to have the impact Barton suggests, we would indeed be confronted with a constitutional question of equal protection. The pleadings in this case can hardly be the source of instructional error where the weakness of evidence on the charged offense warranted the giving of the instruction on the lesser included offense.
The court summed up by saying it believed that given the present state of the law, the burden is on the defense to request instructions relating voluntary intoxication to the elements of crimes. The court stated this was true since evidence of voluntary intoxication was no longer a " defense" . The evidence was rather " proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt." (People v. Saille, supra, 54 Cal.3d at p. 1120, 2 Cal.Rptr.2d 364, 820 P.2d 588.)
But if there is substantial evidence of intoxication such that a jury could determine the defendant did not actually premeditate or deliberate a killing, is there not evidence, in Sedeno 's words, that " raises a question as to whether all the elements of the charged offense were present." (People v. Sedeno, supra, 10 Cal.3d at p. 715, 112 Cal.Rptr. 1, 518 P.2d 913.) And if there is substantial evidence supporting such a finding, is not the trial court required by Sedeno and Wickersham to instruct on that lesser degree of the crime?