Opinion
Rehearing Denied July 8, 1974.
For Opinion on Hearing see, 119 Cal.Rptr. 113, 531 P.2d 425
Opinions on pages 786-803 omitted.
HEARINGS GRANTED
[114 Cal.Rptr. 524]Ruth Ohanessian, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.
COMPTON, Associate Justice.
Charged with murder but convicted by a jury of involuntary manslaughter (Pen.Code, § 192, subdivision 2) defendant appeals claiming error in jury instructions and in ruling on an evidentiary question.
Penal Code section 192 provides in part:
FACTS
Defendant lived with the victim Elijah Turner without benefit of matrimony at an apartment in Inglewood. She was the mother of an infant who also resided there. The relationship between defendant and victim was apparently at an end on the evening of April 29, 1973, because Elijah was in the process of moving out. Elijah's brother Aubrey, defendant's sister Viola and Viola's boyfriend David all came to assist in the move.
At one point during the evening, for reasons which are in dispute, defendant asked Aubrey, Viola and David to step out of the apartment as she wanted to talk to Elijah. According to Aubrey defendant stated 'Elijah isn't going any place.' The three stepped out of the apartment and at trial each gave a different version of what next occurred.
Aubrey testified that he heard some 'bumping' sounds which sounded like a scuffle emanating from the apartment. These were the only sounds he heard. He opened the door to the apartment and reentered to see Elijah with his arms extended and palms open asking defendant to 'stop'. Defendant was holding Elijah by the t-shirt with her left hand and was holding a knife in her right. She raised the knife and plunged it into Elijah's chest. Elijah ran out of the apartment and fell into the yard.
The gist of Viola and David's testimony was that defendant did not say anything about Elijah leaving. They testified to hearing a bumping against the door and seeing the door open, apparently from the inside, and seeing Elijah come stumbling out stating that he had been stabbed. They contradicted Aubrey's claim that he had reentered the apartment.
A police officer arrived on the scene and he testified that Viola told him that defendant had stated at the time she asked the victim to leave 'This m----- f----- isn't going anywhere. He done me wrong. You might as well get out. This m----- f----- isn't going anywhere.' Viola denied telling that to the officer.
The defendant testified that her desire to talk to Elijah alone was because of her embarrassment in not having any money or food in the house and she wished to ask Elijah to leave some money. According to defendant, Elijah refused and directed epithets at her. She was holding the baby in her arms when Elijah pushed her and she fell onto a couch, dropping the baby to the floor. When she tried to get the baby Elijah kicked her and beat her. She grabbed a knife from a cocktail table and stabbed Elijah. She was afraid for her safety but she did not intend to kill Elijah.
[114 Cal.Rptr. 525]Police officers testified in rebuttal that on the night of the incident defendant told them (1) she stabbed Elijah because she did not want him to leave, and (2) Aubrey had seen the stabbing when he reentered the apartment.
Depending upon which witnesses were believed the jury could have returned a verdict ranging from first degree murder to acquittal. The uncontroverted facts which emerge are that (1) defendant intentionally stabbed the victim, (2) the victim was unarmed, and (3) the victim died from the stabbing.
Penal Code section 1105 provides:
'Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.' In attempting to carry her burden of establishing mitigation or justification defendant contended in essence that though she intentionally stabbed the victim, she did not intend to kill and was acting in justifiable self-defense.
The jury was fully instructed on the law of self-defense as well as first and second degree murder. As to manslaughter, the jury was instructed on all forms of manslaughter including that of a killing 'during the commission of a misdemeanor which is inherently dangerous to human life.' The court failed, however, to instruct the jury on what misdemeanor was possibly present under the facts. It is this failure which defendant assigns as error.
At the outset we observe that the problem of disposing of this issue is made more complicated by the fact that the jury was given and returned a verdict form indicating a finding of 'involuntary manslaughter' rather than simply a verdict form for 'manslaughter.' There is but one crime of manslaughter which may be committed in varying ways. There is no requirement in the law that the pleading charge or the jury return a verdict specifying which form of manslaughter was committed. (People v. Dobbs, 70 Cal.App.2d 261, 161 P.2d 46; People v. Jackson, 202 Cal.App.2d 179, 20 Cal.Rptr. 592.)
In the case at bar defendant argues that since the jury found the manslaughter to be 'involuntary' they inferentially found that defendant did not intend to kill the victim and on that basis rejected voluntary manslaughter. Since that leaves only the two forms of involuntary manslaughter, (1) criminal negligence, or (2) so-called 'misdemeanor-manslaughter,' she contends that the failure to fully instruct on the latter prejudiced her and that proper instructions might have resulted in an acquittal.
As we have noted, a verdict of manslaughter need not specify whether it was voluntary or involuntary. However, where the verdict contains such a characterization as in this case and the instructions are under attack, it is necessary to analyze what form of manslaughter was involved under the facts.
Manslaughter like murder, or for that matter any true crime, requires an act and a culpable state of mind or mens rea.
The mens rea of murder is characterized as 'malice aforethought.' Penal Code section 188 provides that 'Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' It is found in (1) an intent to kill, (2) an intentional commission of an act dangerous to life without a specific intent to kill, or (3) commission of a dangerous felony. Perkins, Criminal Law (2d ed.) at page 48, describes malice as an 'unjustifiable, inexcusable and unmitigated man-endangering-state-of -mind.'
Manslaughter is an unlawful killing without malice. The mens rea of [114 Cal.Rptr. 526] voluntary manslaughter is not specifically described in Penal Code section 192 which speaks only of an 'unlawful' killing upon a 'sudden quarrel or heat of passion.' By reference to Penal Code section 188, case law has developed the principle that where reasonable provocation is coupled with a 'sudden quarrel' or 'heat of passion', there is no malice and a killing under such circumstances while still unlawful is only voluntary manslaughter. Stated another way, if a killing which would ordinarily amount to murder is mitigated to the extent that malice is found to be absent, the crime amounts to voluntary manslaughter.
Stated affirmatively, the mens rea for voluntary manslaughter is a derivative of malice or a 'mitigated' malice. In other words, a state of mind which would amount to either express or implied malice in the absence of mitigation, which mitigation may result from a 'sudden quarrel or heat of passion,' a so-called 'imperfect' self-defense (People v. Best, 13 Cal.App.2d 606, 57 P.2d 168) or more recently 'diminished capacity' (see People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Small, 7 Cal.App.3d 347, 86 Cal.Rptr. 478; People v. Tidwell, 3 Cal.3d 82, 89 Cal.Rptr. 58, 473 P.2d 762; People v. Castillo, 70 Cal.2d 264, 74 Cal.Rptr. 385, 449 P.2d 449) constitutes the mens rea of voluntary manslaughter when such mitigation is present.
In a killing where there is no suggestion of the presence of malice, a culpable mens rea, rendering such killing unlawful is specifically defined in the statute (Pen.Code, § 192) as (1) 'the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection' (criminal negligence), or (2) 'in the commission of an unlawful act, not amounting to felony' (misdemeanor).
Where the killing is caused by a deadly weapon the killing may be involuntary manslaughter (see People v. Southack, 39 Cal.2d 578, 248 P.2d 12, accidental discharge of a gun) or it may be voluntary manslaughter (see People v. Best, supra) depending on the defendant's particular state of mind and actions.
The intentional shooting or stabbing of an individual is a 'man-endangering' act whether or not there was the express intent to kill and if unjustified, unexcused or unmitigated, is murder. When such act is mitigated by 'sudden quarrel or heat of passion' coupled with adequate provocation or by the existence of some other circumstances which eliminate malice, the crime is voluntary manslaughter. (People v. Conley, supra; People v. Best, supra.) It is not involuntary manslaughter for the reason that an intentional shooting or stabbing with or without an intent to kill is a felony. It is not a misdemeanor, nor is it criminal negligence. To characterize an intentional shooting or stabbing as negligence is a contradiction in terms.
We are aware of the fact that in some decisions in California it has been stated that voluntary manslaughter requires a specific intent to kill. The reason for such statement is elusive. The statute (Pen.Code, § 192) contains no such language and such a requirement is not necessarily commanded by the word 'voluntary.'
In People v. Bridgehouse, 47 Cal.2d 406, 303 P.2d 1018, the Supreme Court reduced a conviction of second degree murder to manslaughter where defendant had shot and killed his wife's paramour. It is significant to note that in that case the order for reduction did not contain a 'voluntary' or 'involuntary' characterization. However, in the body of the opinion the court makes the statement at page 413, 303 P.2d at page 1022: 'Voluntary manslaughter is a willful act, characterized by the presence of an intent to kill . . .' Later in the opinion, at page 414, 303 P.2d 1018 at page 1022, the court found that there was no evidence of malice 'either express or implied.' (Emphasis added.) At no time did Bridgehouse ever express an intent to kill, yet the court stated that 'the evidence, as a matter of law, shows that defendant [114 Cal.Rptr. 527] was guilty at most of voluntary manslaughter.' (Emphasis added.)
In People v. Forbs, 62 Cal.2d 847, 44 Cal.Rptr. 753, 402 P.2d 825, the language of Bridgehouse concerning the element of intent to kill in voluntary manslaughter was cited with approval but was dicta and unnecessary to the result of that case. Forbs did not involve the intentional use of a weapon, nor did People v. Miller, 114 Cal.app. 293, 299 P. 742, which is cited in Forbs.
In People v. McManis, 26 Cal.App.3d 608, 102 Cal.Rptr. 889, the court repeated the language that an intent to kill was required for voluntary manslaughter but implied such intent from the shooting of the victim with a pistol. McManis is typical of many cases where the language appears and seems to point to the conclusion that while the courts have used the phrase 'intent to kill' in connection with voluntary manslaughter, they meant in fact the intentional commission of a life-endangering act. We have found no case involving the intentional use of deadly weapon where a court has specifically distinguished voluntary from involuntary manslaughter on the basis of an express intent to kill.
Quoting again from Perkins, Criminal Law, at page 53:
'Many statements can be found to the effect that voluntary manslaughter requires an intentional killing; but the tendency has been to give the phrase a meaning broad enough to cover any killing with a man-endangering-state-of-mind that is neither murder nor innocent homicide. This latter usage has the advantage of simplicity because unlawful homicide with a man-endangering-state-of-mind is murder in the absence of mitigation, whereas unlawful homicide without such a state of mind is only manslaughter in any event.'
Thus, where a defendant intentionally uses deadly force in a claimed self-defense, the jury may find such force to have been justifiable and return a verdict of acquittal. Where the jury finds that the force used was not justified, it may nevertheless find in an 'imperfect' self-defense, mitigation sufficient to reduce what otherwise would be murder to manslaughter because of the absence of malice. If so, the manslaughter is of the voluntary type whether or not defendant expressly intended to kill the victim.
Applying these principles to the case at bar, the jury apparently found mitigation and the absence of malice. Even assuming that the jury found by its verdict that defendant had no express intent to kill, the verdict should have been simply manslaughter. That manslaughter would, of course, have been of the voluntary type and there was no need for, or in fact room for, consideration of the two forms of manslaughter characterized as 'involuntary.'
Thus the error, if there was one, was not simply in the failure to define a misdemeanor as contended by defendant but in giving any instructions on involuntary manslaughter and providing the jury with the verdict form which permitted a finding of involuntary manslaughter.
On the face of the record it might be argued that defendant simply received a verdict more favorable than that to which she was entitled or that the additional word 'involuntary' was meaningless surplusage. However, the instructions introduced into the case principles of law which had no relationship to the facts and could only have produced confusion. It would be pure speculation to suggest what the jury might have done given the alternatives of a verdict of murder, acquittal or a single verdict of manslaughter under instructions limited to the voluntary form of manslaughter.
In People v. Hashaway, 67 Cal.App.2d 554, 155 P.2d 101, the court found that giving involuntary manslaughter instructions did not prejudice a defendant who, while suggesting that the victim was the aggressor in an affray thus giving defendant a right of self-defense, contended ultimately that the fatal shot was the result of an accidental discharge off her weapon.
[114 Cal.Rptr. 528]On the other hand, People v. Hatchett, 63, Cal.App.2d 144, 146 P.2d 469, held it to be prejudicial error to give involuntary manslaughter instructions in case of an intentional shooting where the defendant relied on self-defense, stating at page 161, 146 P.2d at page 477: '[T]he jury were told in so many words that the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection, would amount to manslaughter or, in other words, that the act of shooting, if believed lawful, might constitute the offense of manslaughter if it was done in an unlawful manner or without due caution and circumspection. Any such theory of guilt would have been entirely unsupported by the evidence or any legitimate inferences to be drawn therefrom. The instruction clearly tended to divert the minds of the jury from the sole question whether defendant acted reasonably and in good faith in defending herself from a felonious attack and may well have operated to her prejudice.'
We believe Hatchett to be controlling. Here defendant intentionally stabbed the victim in a claimed self-defense and was entitled to have the jury determine the validity of that claim under instructions applicable to the facts.
Obviously on a retrial of defendant, since she has been acquitted of murder, only two verdicts are now possible, i. e., manslaughter or acquittal. We think it important for the guidance of the trial court to state that inasmuch as defendant was convicted of manslaughter, on a retrial of that charge the jury may be instructed and return a verdict on any form of manslaughter consistent with the evidence. In other words, the 'involuntary' form of the previous verdict will not prevent the trial court from instructing the jury on voluntary manslaughter.
Since we have concluded that the judgment must be reversed, we do not take up defendant's other claim of error.
The judgment of conviction is reversed.
ROTH, P. J., and BEACH, J., concur.
'Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds:
'1. Voluntary--upon a sudden quarrel or heat of passion.
'2. Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; provided that this subdivision shall not apply to acts committed in the driving of a vehicle.'