Opinion
For Opinion on Hearing, see 112 Cal.Rptr. 1, 518 P.2d 913.
Opinion on pages 760-773 omitted
HEARING GRANTED
[101 Cal.Rptr. 307]Gary M. Merrit, San Bruno, for defendant and appellant.
Evelle J. Younger, Atty. Gen. of Cal., Eric Collins, Nancy S. Reller, Deputy Attus. Gen., San Francisco, for plaintiff and respondent.
ELKINGTON, Associate Justice.
Defendant Leandro Sedeno appeals from a judgment entered upon jury verdicts finding him guilty of first degree murder (Pen.Code, §§ 187, 189), and attempted murder (Pen.Code, § 664). The penalty on the murder conviction was fixed at life imprisonment.
We state the evidence as it tends to support the jury's verdicts. (See People v. Williams, 5 Cal.3d 211, 214, 95 Cal.Rptr. 530, 485 P.2d 1146.)
Sedeno, having been arrested for indecent exposure (Pen.Code, § 314), was a prisoner in a county jail. He had been asked by a police officer to come out of his cell for the purpose of being fingerprinted and photographed. In the jail hallway Sedeno struck the officer on the jaw with his elbow, knocking him against the wall. He then ran out of the building with the officer in pursuit. Outside, catching up with the fugitive whose shoe had come off, the officer was attacked by Sedeno and struck on the face and chest. The officer responded by striking Sedeno with a billy club, causing a scalp laceration. Sedeno managed again to escape and the officer ran into a coffee shop where he telephoned the station and related what had happened.
The officer soon joined with two others in an automobile and commenced a search. They found Sedeno running rapidly down a street. Catching up to him the officers stopped and emerged from their audtomobile; all three were in uniform and none had a weapon drawn. The police car had the black and white police markings. Sedeno again 'took off running,' with the officers in pursuit. One of the officers tackled Sedeno, whereupon the two fell between parked cars; the officer had not drawn his gun. An approaching officer then saw the other policeman's gun in Sedeno's hands 'and he put it in [the officer's] back and pulled the trigger.' At the time the shot was fired the officer victim was 'laying on his side with his head faced away from Mr. Sedeno'; the gun was approximately twelve inches away from the officer's back. This officer later died from the gunshot wound.
The second officer 'dove' after Sedeno who turned, with both hands on the gun, and pointed it at the policeman's head. As this officer grabbed the gun a shot was fired causing only burns on his hand. With the aid of yet another officer Sedeno was disarmed; nevertheless he 'started fighting again' and it 'was necessary for quite a few to try and hold him down on the ground.' Sedeno was then handcuffed.
[101 Cal.Rptr. 308]I. Sedeno's contention that his first degree murder conviction is unsupported by evidence establishing 'a wilful, deliberate, premeditated killing with malice aforethought,' is found to be invalid.
The jury, by their verdict, must be deemed to have found that at the time of the shooting the police officer victim was lying on his side facing away from Sedeno, and that upon seeing the gun in the policeman's holster, Sedeno extracted it, pointed it at the officer's back from a distance of about 12 inches, and pulled the trigger. And the jury resolved against Sedeno the issue whether he had the capacity to, and did, entertain (1) malice, and (2) wilful, premeditated, and deliberate intent to kill.
The jury were properly instructed on the elements of first degree murder. Among other things they were instructed in the language of CALJIC (rev. ed.), No. 303 (presently CALJIC (3d ed.), No. 8.20) as follows: 'The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide to and commit the unlawful act causing death.' This language of the court's instructions has consistently been approved by the appellate courts of this state. (People v. Terry, 57 Cal.2d 538, 556, 21 Cal.Rptr. 185, 370 P.2d 985; People v. Ray, 252 Cal.App.2d 932, 964-965, 61 Cal.Rptr. 1; People v. Graham, 191 Cal.App.2d 521, 530-532, 12 Cal.Rptr. 893.)
California Jury Instructions, Criminal.
As is well known the test which we must apply is not whether guilt is established beyond a reasonable doubt, but whether there is substantial evidence to support the conclusion of the jury. (People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) Before we may reverse the judgment it must appear that upon no hypothesis whatever is there substantial evidence to support the jury's conclusion. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Midkiff, 262 Cal.App.2d 734, 739, 68 Cal.Rptr. 866.) In determining whether substantial evidence exists an 'appellate court must view the evidence in the light most favorable to [the People] and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evicence. . . .' (People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 419, 475 P.2d 649, 651.) Applying these rules it is clear that the jury's verdicts, and the judgment based theron, were supported by substantial evidence.
II. There is no merit in Sedeno's contention that the court erred in not giving the jury, sua sponte, instructions on self-defense. We find no evidence whatever that would reasonably have supported such instructions. Sedeno himself testified that he did not fire the gun in self-defense; he testified that the mortal shot was accidentally fired when another officer 'rested' for the gun, thus 'triggering' and firing the weapon. Courts are only required, on their own motion, to instruct on general principles of law relevant to the issues raised by the evidence. (People v. Hood, 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370.)
III. For the same reason the court's failure, on its own motion, to give 'unconsciousness instructions' was without error. Unconsciousness, as a defense to a [101 Cal.Rptr. 309] criminal charge (see Pen.Code, § 26, subd. 5), exists where the accused 'physically acts in fact but is not, at the time, conscious of acting. . . .' (People v. Newton, 8 Cal.App.3d 359, 376, 87 Cal.Rptr. 394, 405.) Here the evidence, including Sedeno's own testimony, establishes that he was fully 'conscious of acting' throughout the pertinent events.
IV. Nor is error found in the failure to instruct the jury on 'hypothetical questions,' in the absence of a defense request therefor. The instruction which Sedeno now says should have been given is 'CALJIC No. 2.82' which is as follows:
'In examining an expert witness, counsel may propound to him a type of question known in the law as a hypothetical question. By such a question the witness is asked to assume to be true a hypothetical state of facts, and to give an opinion based on that assumption.
'In permitting such a question, the court does not rule, and does not necessarily find that all the assumed facts have been proved. It only determines that those assumed facts are within the probable or possible range of the evidence. It is for you, the jury, to find from all the evidence whether or not the facts assumed in a hypothetical question have been proved, and if you should find that any assumption in such a question has not been proved, you are to determine the effect of that failure of proof on the value and weight of the expert opinion based on the assumption.'
CALJIC No. 2.82 cannot reasonably be considered an instruction on the general principles of law relevant to the issues; rather, it relates to a specific point developed at the trial. Accordingly, unless a proper request is made, it need not be given. (See People v. Hood, supra, 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370.) It has even been held proper to refuse a request for such an instruction. (People v. Thompson, 16 Cal.App. 748, 754, 117 P. 1033.)
V. Sedeno contends that the trial court's failure to instruct on 'statutory voluntary manslaughter (Penal Code section 192)' was error. Although such an instruction was not requested, if it was relevant to the issues raised by the evidence, it should have been given since it would then relate to the applicable principles of law. (See People v. Hood, supra, 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370.)
Penal Code section 192, subdivision (1) defines voluntary manslaughter as homicide, without malice, 'upon a sudden quarrel or heat of passion.' It is said: "to reduce a felonious homicide from the grade of murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such character as would be naturally calculated to excite and arouse the passion. . . . Heat of passion is defined as such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and consequently no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." (People v. Valentine, 28 Cal.2d 121, 137, 169 P.2d 1, 11; see also People v. Morse, 70 Cal.2d 711, 734-735, 76 Cal.Rptr. 391, 452 P.2d 607.)
Sedeno's testimony as it tended to show 'provocation' follows. He was awakened in his cell by a police officer, and as he started to put on his shoes he was twice 'shoved' by the officer. He decided 'to retreat' and ran out of an open door. The officer followed, twice hitting him on the head with a billy club, drawing 'all this blood' and causing his legs to buckle. He then 'panicked' and ran down the street; he was afraid they were going to beat him up some more. Pursued again, he 'was tackled to ground' by officers who immediately handcuffed him. One officer grabbed his hands, another his legs, and they started kicking him; he 'could see their legs flying up toward [his] rib cage.' Then one of the officers started choking [101 Cal.Rptr. 310] him by the neck. Momentarily released from the choke hold and gasping for air, he saw the officer's holstered pistol, grabbed it and fired.
For the purpose of instructions the trial court was not, nor are we, permitted to pass upon the credibility of Sedeno's testimony. 'The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based theron. . . . That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true. . . .' (People v. Burns, 88 Cal.App.2d 867, 871, 200 P.2d 134, 136, and see authority there cited.)
We recognize that Sedeno's principle defense was that the shooting of the officer was accidental, the gun being 'triggered' when another officer 'rested' for it. But it appears that where there is evidence or provocation, although such is not relied upon, instructions on voluntary manslaughter must be given. (People v. Dewberry, 51 Cal.2d 548, 557, 334 P.2d 852.) This seems to follow from the rule that inconsistent defenses to a charge of crime may ordinarily be pursued. (See People v. Perez, 62 Cal.2d 769, 775, 44 Cal.Rptr. 326, 401 P.2d 934; People v. West, 139 Cal.App.2d, Supp., 923, 926, 293 P.2d 166; People v. Keel, 91 Cal.App. 599, 267 P. 161; 1 Witkin, Cal. Crimes, § 177, pp. 169-170.)
Following these rules we must, and do, conclude that there was some evidence of provocation which called for the 'statutory voluntary manslaughter' instruction. In not giving it, the trial court erred.
VI. We now advert to Sedeno's argument that the trial court should have instructed that 'diminished capacity could also have resulted in involuntary manslaughter.'
This contention is based upon a rule laid down about four months before Sedeno's trial in People v. Mosher, 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659. There the court held (p. 391, 82 Cal.Rptr. p. 386, 461 P.2d p. 666) that where the evidence supports instructions on 'diminished capacity' the court must also instruct 'that if, due to diminished capacity the defendant had neither malice nor intent to kill, the offense could be no greater than involuntary manslaughter. . . .'
It seems unnecessary to elaborate on the imstant factual basis for such an instruction. Beyond any doubt Sedeno introdued evidence from which, if believed, the jury could have found due to mental defect and diminished capacity a lack of malice and of intent to kill.
It follows that error also attended the trial court's failure to give the 'diminished capacity involuntary manslaughter' instruction.
Such an instruction is now to be found in CALJIC (3d ed.) No. 8.48 (1971 rev.), where it is entitled 'Involuntary Manslaughter--Absence of Intent to Kill due to Diminished Capacity.'
VII. Additional error, unmentioned in the briefs, appears in the record.
The trial court, with considerable justification in reason, concluded that an escape from a city jail 'by force and violence' (Pen.Code, § 4532, subd. (a)) was 'a felony inherently dangerous to human life.' Accordingly, under the second degree felony-murder rule reiterated in People v. Ireland, 70 Cal.2d 522, 538, 75 Cal.Rptr. 188, 197, 450 P.2d 580, 589, the jury were instructed that a homicide 'which occurs as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of escape (with force and violence) and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the second degree.'
But, 18 months after Sedeno's trial the Supreme Court in People v. Lopez, 6 Cal.3d 45, 51-52, 98 Cal.Rptr. 44, 48, 489 P.2d 1372, 1376, held that such an escape, even [101 Cal.Rptr. 311] though with force and violence, 'viewed in the abstract, is not a felony inherently dangerous to human life'--and therefore could not 'properly support a second degree felony-murder instrucion.' (Emphasis added.) By this holding we are required to declare the existence of further error.
VIII. Article VI, section 13 (formerly section 4 1/2) of the Constitution of this state requires us to examine the record and determine whether in our opinion the errors which we have found have resulted in a miscarriage of justice. If we conclude there was no such miscarriage of justive we are commanded not to set aside the judgment even though there was 'misdirection of the jury.'
The full text of California Constitution, article VI, section 13, follows:
But for the matters now under scrutiny, the jury were properly instructed on the several pertinent homicide offenses. Among these instructions they were told:
'Murder is the unlawful killing of a human being, with malice aforethought. . . .
'As used in connection with murder, 'malice' may be either express or implied.
'Malice is express when there is an intention unlawfully to kill a human being.
'All murder which is perpetrated by any kind of wilful, deliberate and premeditated killing with malice aforethought is murder of the first degree.
'The word 'deliberate' means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word 'premeditate' means thought over beforehand.
'If you find that the killing was preceded and accompanied by a clear, deliberate intent to take life; an intent on the part of the defendant to kill, which must be the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition, such as precludes the idea of deliberation, it is murder of the first degree.'
It should be pointed out that the trial, and the court's instructions, were in no way concerned with the 'first degree felony-murder rule' of Penal Code section 189, which provides that murder in the perpetration of certain acts, or certain named felonies, is 'murder of the first degree.'
The jury were also instructed on Sedeno's theory of diminished capacity as follows:
'If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree. In that case, you cannot find the defendant guilty of any offense included within Count I of the Information higher than voluntary manslaughter.
'When a defendant is charged with a crime which requires that a certain specific [101 Cal.Rptr. 312] intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abonormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.'
The trial court took special to instuct the jury oon the relation of diminished capacity to a charge of murder of the first degree. They were told:
'Before you may find the defendant guilty of wilful, delibertate and premeditated murder of the first degree, you must determine that at the time the crime allegedly was committed he not only had sufficient mental capacity to form the specific intent to kill but had suffcient mental capacity to maturely and meaningfully deleberate, premeditate and reflect upon the gravity of his coontemplated act too harbor malice aforethought.'
The jury, on these concededly correct instructions, found that Sedeno killed the police officer with malice aforethough, that he entertained the specific intent to kill, and further, that the killing was premeditated and deliberate.
The jury further, on concedly correct instructions, found that Sedeno had no diminished capacity which prevented him from entertaining the requisite malice, deliberation, premeditation, and specific intent to kill, of murder of the first degree.
The jury having expressly found that Sedeno acted with malice in the slaying of the policeman, it reasonably, necessarily, and demonstrably follows that manslaughter instructions which could have relevancy only upon a finding of no malice, could in no way have the trial's result.
And the jury having expressly found deliberation, premeditation, and a specific intent to kill officer, and thus murder of the first degree, it can be of no logical consequence that they were erroneously instructed (according to late announced law) on the second degree felony-murder rule as it relates to a jail escape with force and violence. Here again it seems wholly unreasonable, and unrealistic, to suppose that had the trial court correctly augured the People v. Lopez (6 Cal.3d 45, 98 Cal.Rptr. 44, 489 P.2d 1372) rule and instructed accordingly, the jury on the same evidence might somehow then have found no premeditation, deliberation or specific intent to kill, and thus no murder of the first degree.
Indeed, here the lack of prejudice appears with logical certainty, unlike the usual application of the harmless error rule, where the court after considering and weighing the evidence will opine that it is not 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. . . .' (See People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254.)
Were we to apply the rule of People v. Watson, we would express the opinion, after an examination of the entire cause, including the evidence, that it is not teasonably probable that a result more favorable to Sedeno would have reached on in the absence of the error we have found. We would also declare a belief that such error was harmless beyond a reasonable doubt. (See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)
But the judgment must nevertheless be reversed. By a growing line of cases it is held that regardless of the constitutional language that no 'judgment shall be set aside . . . on the ground of misdirection of the jury,' if the error is harmless (Cal.Const., art. VI, § 13), the provision is inapplicable where the trial court has not instructed on 'all of the issues presented by the evidence.' (Emphasis added.) Harmless, or not, such error is prejudical per se. (People v. Tidwell, 3 [101 Cal.Rptr. 313] Cal.3d 82, 86-87, 89 Cal.Rptr. 58, 60, 473 P.2d 762; People v. Mosher, supra, 1 Cal.3d 379, 389-393, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Graham, 71 Cal.2d 303, 314-316, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Castillo, 70 Cal.2d 264, 270-271, 74 Cal.Rptr. 385, 449 P.2d 449; People v. Conley, 64 Cal.2d 310, 318-326, 49 Cal.Rptr, 815, 411 P.2d 911; People v. Modesto, 59 Cal.2d 772, 730, 31 Cal.Rptr. 225, 382 P.2d 33.) The rule is stated to have constitutional authority since one have a "constitutional right to have the jury determine every meterial issue presented by the evidence." (People v. Mosher, supra, 1 Cal.3d 379, 391, 82 Cal.Rptr. 379, 386, 461 P.2d 659, 666; People v. Modesto, supra, 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.) Unmentioned and unconsidered is the rule that even in the area of constitutional rights, no a reversal exists on account of error which is harmless. (See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, 288; Chapman v. California, supra, 386 U.S. 18, 21-22, 87 S.Ct. 824; People v. Coffey, 67 Cal.2d 204, 218-219, 60 Cal.Rptr. 457 P.2d 15; People v. Powell, 67 Cal.2d 32, 52, 59 Cal.Rptr. 817, 429 P.2d 137.)
The court's expressed justification for its 'prejudicial per se' rule is stated as: 'Since we do not know what effect an instruction that the jury could reture a verdict of manslaughter would have had on its deliberations. we cannot conclued that it necessarily rejected the evidence of manslaughter. . . .' (People v. Modesto, supra, 59 Cal.2d 722, 731, 31 Cal.Rptr. 225, 230, 382 P.2d 38; People v. Castillo, 70 Cal.2d 264, 271, 74 Cal.Rptr. 385, 449 P.2d 449.)
The verdict of a property instructed jury, founded on substantial evidence, has long been considered a verty. On it men's lives, liberty and property rights have depended. But here such a verdict is given little respect. All admit that there was substantial evidence supporting the jury's finding of malice and of premeditation, deliberation and specific intent to kill. All agree that the jury were properly instructed on those concepts. But we are told that the jury might have found otherwise had they been given certain instructions which were applicable only if they found no malice, or no premeditation, deliberation, and specific intent to kill. The 'prejudicial per se' rule is now law, but we respectfully suggest that it is not reason. (Cf. People v. Asher, 273 Cal.App.2d 876, 896, 78 Cal.Rptr. 885; People v. Auvrey, 253 Cal.App.2d 912, 191, 61 Cal.Rptr. 772.)
The rule appears to us to be a rejection of the constitutional principle of harmless error in the area it was particularly designed to cover, the 'misdirection of the jury' where prejudice in fact has not occurred. It extends a sort of judicial charity to the violator without concern for the violated victim and public.
We, of course, as a lesser court of appeal must accept the law as declarde by the Supreme Court of this state. (Auto Equity Sales v. Suerior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)
The error we have found relates to each of the offenses, first degree murder and attempted murder, of which Sedeno was convicted. His convicitions as too each offense must be reversed.
The judgment is reversed.
MOLINARL, P. J., and SIMS, J., concur.
'No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'