PEOPLE v. BRYANT

Respondent’s Petition for Review

Cal.September 13, 2011

Sips Be Ty In the Supreme Court of the State of Califorgia SEB To. Fran... I3 ey OE Fe py SELPes os THE PEOPLE OF THE STATE OF ee CALIFORNIA, were) son i Plaintiff and Respondent, Case No. D057570 Vv. AMALIA CATHERINE BRYANT, Defendant and Appellant. Fourth Appellate District, Division One, Case No. D057570 Riverside County Superior Court, Case No. SWF014495 The Honorable Timothy F. Freer, Judge PETITION FOR REVIEW KAMALAD. HARRIS Attomey General of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General KRISTEN KINNAIRD CHENELIA Deputy Attorney General State Bar No. 225152 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 525-4232 ~ Fax: (619) 645-2271 Email: Kristen.Chenelia@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issues Presented .............ccceccsssesssssscececscecccccccceccccecccceseecesucessessescueveuseceeeceececs 1 Statement of the Case........ccccccccccccceccsssecccescessccscsssccseecucsessacseceeeseeseeseeescs 1 Reasons for Granting REViW ....ccsscssssssssssscssscsessseecusesueecesesssecseesseessscaseasees 9 CONCLUSION ..........cc ccc cesessecccvsssscscssssesesscccesscceccseceesecceccecesecauceuensersesceeveveseuucs 13 TABLE OF AUTHORITIES Page CASES Keeler v. Superior Court (1970) 2 Cal.3d 619 ooo.ccceecssesessesseesseesesesasecsseesnsesseeseessecsseseseeesesenees 11 People v. Blakely (2000) 23 Cal.4th 82 oo. ecscseesecseesscecseeesecsscessseseseesasesecenecsneeseeestatsaees 11 People v. Flannel (1979) 25 Cal.3d 668 0...eeceecssesecececceeessneetecssaesssessstessesaeeseeess bevenees 11, 12 People v. Garcia (2008) 162 CalApp.4th 18 oo.eeceesseeeserssnecssessaceseeeeeessessaeeeseespassim People v. Lasko (2000) 23 Cal.4th 101 ooeeeseeseeseeesceseeceacecseeeececsneeaessnestasenesesseeaaee 10 STATUTES Penal Code § Oo. eceeceesecencesrerseeestecsseeeseseseceaseseseaeerseseaeestesesnseeeeegsdeseneeaeeaeeeaceseesseeeseesaes 11 § 19Deesceeccseceteessncenseceaeeseecscessecsseeesecsasenseceaeesonsessecssesesesesesasesasesseteeeeses 10 COURT RULES California Rules of Court TUNE 8.500 oe eececeseesesssseeresssnesessessesessnsesececenesessesseaeesesssacsacseaessessesensenesessenaces 1 OTHER AUTHORITIES CALCRIM NOS. 0 seeaeeeesaesacaesaesseeueseesesseseeseeseseeeaeseeesaeneenees 8 S20. .sceecceeeceseeessessceseceasessacenseseasssevsacseseseeesnesaceseeeeaeesaessaceseseneeeaeeesaseneceeeess 8 SQL. .eseeeeesccesceescesseesercnseeseeeeeeseaeeeeeesssessesseavevecueareseareneencarececeusaeeneeneaceneeseeners 8 S70. ..escesccesecesesssessessecesscesssesserenscsecseevedeeseesessseneseseaeesseseessnessesseessessneceneeeaness 8 ST eesccessesseseceeseessseceeessebeceessecsecsseeesesesecserscssessesesuecessescecenssneseassseesseeseneseners 8 ii PETITION FOR REVIEW TO THE HONORABLE,CHIEF JUSTICE TANI GORRE CANTIL- SAKAUYE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Respondent, the People of the State of California, respectfully petitions this Court to grant review in this matter pursuantto rule 8.500 of the California Rules of Court. In a published opinion filed on August9, 2011, the Courtof Appeal, Fourth Appellate District, Division One, reversed the jury’s second degree murder conviction and modified the judgmentto reflect a conviction of voluntary manslaughter. A copy of the opinion is appendedhereto. ISSUES PRESENTED Did the appellate court abuse its authority by fashioning a new form of voluntary manslaughter—death resulting from an inherently dangerous felonious assault withoutintent to kill—and imposing a duty on thetrial court to sua sponte instruct on this novel theory? STATEMENT OF THE CASE Appellant and Robert Golden began dating in September 2003, a few months after Golden graduated from high school. (2 RT 121; 3 RT 367.) They had a tumultuousrelationship and broke up manytimes until appellant discovered she was pregnantin the Spring of 2004. (2 RT 122; 3 RT 325, 369-370.) Appellant gave birth to twin boys in December 2004. (2 RT 122.) In June 2005, appellant and Golden movedinto a two- bedroom apartmentat the same complex where Golden’s mother andsisters lived. (2 RT 123-125; 3 RT 321, 324, 327, 372.) In October and November of 2005, Goldentold friends and family that he was unhappy _ with appellant and wantedto endtheir relationship and move out. (2 RT 132-133; 3 RT 329, 394-395; 6 RT 878-879, 881, 883, 886-887, 891.) On November 24, 2005, Thanksgiving Day, appellant and Golden went to Golden’s aunt’s house for Thanksgiving dinner and then stopped by appellant’s parent’s homeon the waybackto their apartment. (2 RT 141, 158-163, 168; 3 RT 332, 403.) On her way home, Golden’s mother stopped by their apartment and dropped off dessert. (3 RT 403.) Golden was playing video gamesandsaid appellant had gone to bed. (3 RT 403- 404.) At about 8:45 p.m., neighbors heard appellant screaming for help. (2 RT 178-182, 207-208, 239, 243.) They responded and discovered Golden lying in the doorwayofhis apartment face down and appellant kneeling over him. (2 RT 183, 185, 219, 246, 248.) Appellant was hysterical, screaming for help, and wearing a red negligee. (2 RT 191-193, 227, 244, 258-259.) She kept rocking Golden andtelling him to “wake up.” (2 RT 188, 196, 229, 250.) When Deputy Joseph Narcisco of the Riverside County Sheriff's Departmentarrived at 8:53 p.m., Golden had no pulse and appellant was kneeling over him crying hysterically. (3 RT 421-424, 426, 438.) Deputy Narcisco asked appellant “who stabbed” Golden andshesaid “I did.” (3 RT 427.) Paramedics responded and worked on Golden before taking him to the hospital where he was pronounced dead. (3 RT 446-456; 4 RT 502.) Dr. Aaron Gleckman performed Golden’s autopsy. (4 RT 560.) Golden was 6’ 1” and weighed about 285 pounds. (4 RT 586, 605.) His cause of death wasa four to five inch deep stab woundthat passed through his xiphoid process (the small bone below the sternum),his pericardium, and penetrated the right ventricle of his heart. (4 RT 583, 586-587, 590.) The stab wound wasangledfront to back and slightly upward. (4 RT 583.) After being stabbed, Golden may have been conscious for a minute or two before bleeding to death. (4 RT 601, 631.) Dr. Gleckman opinedthatit would take a significant amountofforceto inflict the stab wound; meaning a person would haveto force the knife into Golden’s chest and Golden could not have just walked into the knife. (4 RT 589, 599.) Golden had additional injuries. Golden had a one-inch bruise underneath the surface ofhis scalp on the backright side of his head caused by significant force from blunt trauma. (4 RT 576.) He had a one by one half-inch ecchymosis (bleeding under the skin) onthe left side of his back. (4 RT 580.) Golden had scratches on the right side of his forehead, above his mouth,andthe left side of his chin. (4 RT 576.) He had a one-inch long curvilinear incised wound onthe back of his left wrist. (4 RT 565.) In addition, he also hadcuts or scratches on three ofhis fingers, and bruising on his handthat could have been consistent with striking something, and bruising onhis left forearm consistent with being grabbed. (4 RT 565, 570- 574, 610.) Lieutenant Cheryl Evans interviewed appellant. (6 RT 913; 7 RT 1056-1059 [see transcript at 2 CT 388-473].) Appellant was jealous because Golden was vibrant aroundhisfriends but not with her. (2 CT 402.) She wasalso lonely and depressed because Golden was no longer affectionate with her. (2 CT 403-404.) She was taking Prozac for her depression and bi-polar personality. (2 CT 430.) Appellant said the bruises on her arms were from an argument with Golden a few days earlier when she thought Golden wascheating on her. (2 CT 424.) She said Golden had been physically abusing her since they started dating. (2 CT 431.) Earlier that evening, appellant was trying to cal] her friend because she wanted to leave. (2 CT 412.) Golden unplugged the phone from the bedroom wall and smackedher on the leg with the phone. (2 CT 412.) He then pushed her down onthe bed andstrangled her while straddling her. (2 CT 415-416.) Appellant swunga doll at Golden andtried to break a glass candle holder against the dresser to show how madshe was. (2 CT 413.) She threw the candle holderinto the hallway, grabbed a knife from the dresser drawer and started cutting herself. (2 CT 415, 454.) Golden knocked the knife out of appellant’s hand with a hair brush. (2 CT 456.) Appellant then picked up the broken candle holder from the hallway and tried to cut herself. (2 CT 457.) Golden smiled andtold her, “Doit. Just do it. Don’t hurt anyone else.” (2 CT 457.) Golden blocked appellant from leaving through the front door so she grabbed the phone and hit him on the head with it. (2 CT 419.) She then grabbed the knife from the kitchen table to scare him andsaid, “You better let me leave or I’1l hurt | you.” (2 CT 417, 439, 460.) While struggling over the knife, Golden bit appellant. (2. CT 419, 422, 461.) During the struggle appellant thrusted the knife from her waist and stabbed Golden while he was bent over. (2 CT 461-462.) Lieutenant Evans took photographsof appellant at about 2:00 a.m. (6 RT 913, 923; 7 RT 1053.) Appellant was wearing a red satin negligee with no visible blood on it. (6 RT 923-924.) She had no injury to her legs or feet. (6 RT 925.) Appellant had a fresh bruise on the back of her right | thigh/buttock area. (6 RT 934-935.) She also had bruising on her armsthat wasnot fresh. (6 RT 927-932.) Appellant had numerousscars on her wrists from cutting herself and one fresh cut mark. (6 RT 931-934.) Finally, appellant had an indentation injury to her thumb and a one-half- inch red markontheleft side ofher face. (6 RT 926, 937.) Lieutenant Evans took more photographs 12 hours later and there were no changes to appellant’s injuries except the mark on her neck was gone. (6 RT 938-940; 7 RT 1053.) Lieutenant Evansnoticedthat there was no bruising or discoloration to appellant’s face or neck where she claimed Golden held her down and strangled her. (7 RT 1059-1060.) . In the interview appellant told Lieutenant Evans about an online journal she kept. (2 CT 409; 6 RT 858-861, 957-958.) A handwritten journal wasalso recovered from appellant’s bedroom. (6 RT 959-960.) Numerousjournal entries were read for the jury wherein appellant expressed feelings ofjealously, hatred and resentment towards Golden. (6 RT 974-987.) In the master bedroom the phone cord had been removedfrom the wall, a knife was in a drawer, and there wasa doll, the battery coverto the phone and Golden’s broken glasses on the ground. (5 RT 690, 726, 729- 730, 748, 757.) In the hallwayoutside of the bedroom wasa broken glass candle holder. (5 RT 680, 717.) Also in the hallway wasa large pool of blood with drops leading from it to the front door where there was another pool ofblood. (5 RT 673-675.) The faceplate and handsetto the cordless telephone were on the living room floor near the front door. (5 RT 698, 707-709, 725, 724.) Finally, there was a knife covered in blood on top of a book on the counter separating the kitchen and the living room. (5 RT 669.) Appellant testified in her defense. Appellant started dating Golden in September 2003, when they were both 18 years old. (7 RT 1234.) Soon after that Golden became abusive; the physical abuse was mutual. (7 RT 1236-1237, 1240, 1244-1258, 1265, 1312.) Appellant had bruises on her arms because a few days before Thanksgiving she was depressed, accused Golden of cheating on her, and whenshetried to leave he held her down on the floor by her arms. (7 RT 1263-1264.) On Thanksgiving Day appellant was sad and lonely because there was little interaction between she and Golden. (7 RT 1273.) On the ride home from dinner she asked Golden if he wastired, he said yes, and she replied that was too bad because she wanted to have sex. (7 RT 1274.) Appellant said she was more depressed than angry, and saw her proposition as the “last test” to“see if there was anythingleft in the relationship.” (7 RT 1314.) She putthe kids to bed, put on a negligee in hope ofgetting a reaction frem Golden, and wrote in her journal while listening to music. (7 RT 1276, 1279.) After Golden’s motherleft, appellant threw Golden’s blankets and pillows on the living room floor, told him they were done, and grabbedthe phone. (7 RT 1280.) Golden asked who she wascalling, unplugged the phone,and grabbedit from her hand andhit her with it. (7 RT 1282-1283.) He then got on top of her, held her down, and chokedher. (7 RT 1284-1285.) Appellant pulled Golden’s hair, got up, and swung the doll at him but missed. (7 RT 1286-1288.) She then grabbed the candle holder and tried to break it on the dresser. (7 RT 1289.) Golden left the bedroom and she closed the door behind him. (7 RT 1290.) Hereturnedto the bedroom andappellant threw the candle holder at him. (7 RT 1290.) Appellant missed Golden andthe candle holder shatteredin the hallway. (7 RT 1290.) . Appellant grabbed a steak knife from the desk drawer that she used for cutting and threatened Golden bytelling him,“ifhe didn’t let me leave, I was going to kill him.” (7 RT 1291-1292.) She then started cutting her wrist with the knife. (7 RT 1292.) Golden knocked the knife out of her hands with a hairbrush before leaving the room. (7 RT 1292.) Appellant could not find her knife so she grabbed some brokenglass from the hallway and tried to cut herself. (7 RT 1292- 1293.) Golden told herto “do it” and “don’t hurt anyoneelse.” (7 RT 1292.) Appellant moved towardthe front door to leave but Golden stopped herand said, “No, you can’t leave. You can’t leave. Just do it. Kill yourself.” (7 RT 1294-1295.) She grabbed the phone and hit him on the head withit but he did not move. (7 RT 1296- 1297; 8 RT 1457-1458.) Appellant walked abouteight feet and grabbed a knife from the kitchentable withher right hand. (7 RT 1297, 1302; 8 RT 1458.) She thrusted the knife at Golden and pulled it back hoping to scare him into- backing away from the door so she could leave. (7 RT 1297-1299, 1302; 8 RT 1424.) The entire time saying, “Let me leave.” (7 RT 1299.) Instead, Goldentried to disarm appellant. (7 RT 1300-1302.) Golden grabbed her wrist, twisted it, and bit her thumbto force her to drop the knife. (7 RT 1300-1301.) Appellant stepped back and switched the knife into herleft handso he could not get it. (7 RT 1301.) Appellant then testified that, Golden “cameat me,andI thrust the knife at him.” (7 RT 1301.) She pulled the knife out and Golden stepped back andsaid, “You stabbed me.” (7 RT 1302.) She dropped the knife and ran outside for help. (7 RT 1303- 1304.) Appellant said she had mixed feelings of love and hate for Golden but never intendedto kill and didnot plan to kill him. (7 RT 1310-1311.) Appellant admitted to cheating on Golden in 2004 with her former boyfriend Marcos. (8 RT 1335.) She wasalso violent with Marcos because she thought he was cheating on her. (8 RT 1336.) In late 2003 and early 2004, appellant made a scrapbook for Golden that she later defaced. (8 RT 1392-1394.) For instance, on a card given to her by Golden she drew a picture of a knife with blood droplets stabbing the manin the picture to symbolically represent Golden. (8 RT 1395-1397.) When Deputy Bommerrespondedto the scene, appellant was crouched beside Golden. Appellantsaid,“It’s all my fault,” and “this wasn’t supposed to happen. He wouldn’t let me leave. He neverlets me leave.” (9 RT 1518-1525.) Forensic pathologist Dr. Paul Herman opined that Golden had two distinct bruises on his right hand from striking something or someone _ striking him,andbruising on his left hand consistent with hitting someone within a day or two of his death. (7 RT 1154, 1160, 1164-1165.) Dr. © Herman explainedifthe knife actually went through the boneofthe xiphoid process it would take somewhat moreforce, but becauseit is not a very large boneit is hard to tell how muchforce it would take. (7 RT 1171.) Asto appellant, Dr. Hermansaid her bruising wasconsistent with her being hit or grabbed a few days earlier. (7 RT 1224.) He also said that - people do not alwaysbruise after being choked. (7 RT 1192-1193.) Overall, Golden and appellant’s injuries were consistent with there being a struggle between them. (7 RT 1194.) Forensic scientist Dr. John Thorton reviewedthe physical evidence and foundit to be consistent with a struggle between appellant and Golden that would not have taken more than two minutes. (8 RT 1463, 1491, 1497.) The trial court instructed the jury on the concepts of murder and manslaughter. It described the necessary elements of murder. (See CALCRIM Nos. 500, 520, 521; 3 CT 629-631; 10 RT 1904-1907.) It also described the necessary elements of manslaughter based on heat of passion (See CALCRIM No.570; 3 CT 632-633; 10 RT 1907-1908), and imperfect self-defense (See CALCRIM No. 571; 3 CT 634; 10 RT 1908-1909). The prosecutor maintained appellant acted with express malice when she lunged andplungedthe knife at least four inches into Golden’s chest. (10 RT 1925.) Healso argued thatat the very least, she acted with implied malice when she lungedat him a second time with the knife and stabbed him in the chest knowing the act was dangerous to humanlife. (10 RT 1925-1926.) Defense counsel argued appellant killed Goldeninself- defense. (10 RT 1977-1982.) She further argued the manner of killingdid not support a finding of intent to kill (10 RT 1982), and addressed both theories ofvoluntary manslaughter (10 RT 1984-1987). The jury returned a verdict of second degree murder. Appellant argued on appeal that the trial court should have instructed on the lesser included offense of involuntary manslaughter. On its own motion, the Court of Appeal requested additional briefing which asked the parties to assume appellant committed at a minimum felony assault with a deadly weapon, andaddress whetherthe trial court committed reversible error byfailing to instruct the jury sua sponte that an unintentionalkilling without malice during the course of an inherently dangerousassaultive felony constitutes voluntary manslaughter (People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia).) In a published decision issued August 9, 2011, the Court of appeal concludedthetrial court committed reversible error by failing to instruct the jury sua sponte pursuant to Garcia that an unintentionalkilling committed without malice during the course of an inherently dangerous assaultive felony constitutes voluntary manslaughter. (Slip Opn.at pp. 2- 3.) The Court of appeal reversed the jury’s finding of second degree murderand ordered the conviction to be modified to voluntary manslaughter unless the People retry appellant on second degree murder. (Slip Opn.at p. 3.) REASONS FOR GRANTING REVIEW Review is necessary to settle an important question of law asto whether an appellate court can create a new theory of voluntary manslaughter and imposea duty onthetrial court to sua sponte instruct on that theory retroactively. In this case the Court of Appeal inappropriately relied on dicta in the Garcia opinion and created a new theory of voluntary manslaughter without any statutory basis or direction from this Court. It then heldthe trial court should haveinstructed on this newly created theory and reversed a murderconviction forthetrial court’s failure to doso. In People v. Garcia, the defendant struck the victim in the face with the butt of a shotgun, causing him to fall to the sidewalk andhit his head, resulting in his death. (People v. Garcia, supra, 162 Cal.App.4th at pp. 22- 23.) The jury found him guilty of voluntary manslaughter. (/d. at p. 23.) Garcia did not challenge the sufficiency of the evidence to support the voluntary manslaughter conviction. (/d. at p. 26.) Rather, he claimed the trial court should have instructed on involuntary manslaughteras a lesser included offense. (People v. Garcia, supra, 162 Cal.App.4th at p. 26.) Answeringthis precise claim, the court in Garciastated, An unlawful killing during the commission of an inherently dangerousfelony, even if unintentional, is at least voluntary manslaughter. Because an assault with a deadly weapon or with a firearm is inherently dangerous,the trial court properly concluded the evidence would not support Garcia’s conviction for involuntary manslaughter and, therefore, did noterr in declining to instruct the jury on involuntary manslaughter as a lesser included offense of murder. (Id. at p. 22.) In comingto its conclusion that the trial court was not required to instruct on involuntary manslaughter, the court in Garcia reviewed case law and reasoned “an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter.” (People v. Garcia, supra, 162 Cal.App.4th at pp. 26-31, italics added.) The court in Garcia essentially foundthat since the defendant’s crime as characterized by Garcia on appealdid notfall within the statutory definition of either murderor involuntary manslaughter,it mustbe at least voluntary manslaughter because,if the killing were unintentional, it could be voluntary manslaughteras intentto kill is not an elementof voluntary manslaughter. (/d. at p. 32.) However,it is critical to understand that the court in Garcia was not announcing a new basis for voluntary manslaughter, but rather, was showing by deduction that Garcia’s crime wasnot involuntary manslaughter. ~The Court of Appeal asserts that Garcia“articulates a third theory of voluntary manslaughter.” (Opn. at p. 12.)' Itis wrong. Garcia merely ' The other twotheories of voluntary manslaughter being: upon sudden quarrel or heat ofpassion (§ 192, subd.(a); see People v. Lasko (2000) 23 Cal.4th 101, 108 [“‘the killer's reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause . (continued...) 10 concludedthat an unintentional killing in the course of an inherently dangerousfelonyis at /east voluntary manslaughter, and therefore, an involuntary manslaughter instruction was not warranted underthosefacts. The Garcia opinion did notarticulate a new theory of voluntary manslaughter, as well it could not. Rather, in an intellectual exercise and by process of deduction, it surmised that such a crime would beat least voluntary manslaughter. | Noticeably, not only did the Court of Appeal rely on dicta to create a new theory of voluntary manslaughter out of whole cloth, but it did so without any statutory basis. Penal Code section 6 codifies that for an act or omission to be criminal or punishable, it must be prescribed or authorized by the Penal Code or other authorizing legislation. This section embodies a fundamental principle of ourtripartite form of government, 1.e., that subject to the constitutional prohibition against cruel and unusual punishment, the powerto define crimes and fix penalties is vested exclusively in the legislative branch. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631.) The Court of Appeal’s ruling completely disregarded the Legislature’s role in defining crimes and exceededits authority when it mined Garcia for a new theory of manslaughter without offering statutory support for this discovery. After concluding Garcia “articulates a third theory ofmanslaughter,” the Court of Appeal construed the evidence in the light most favorable to appellant and found there was substantial evidence from which a jury could (...continued) ; an ‘ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’”]), and unreasonable self-defense as fashioned by this Court in People v. Flannel (1979) 25 Cal.3d 668 (see People v. Blakely (2000) 23 Cal.4th 82, 88 [“the defendantkills in ‘unreasonable self-defense’--the unreasonable but goodfaith belief in having to act in self-defense}]). 11 find appellant did not subjectively appreciate that her conduct endangered Golden’s life. (Slip Opn.at pp. 26-27.) It found error in the trial court’s failure to instruct on this judicially created theory of manslaughter sua sponte. The utter absence of then existing authority for this novel theory of voluntary manslaughter would require a trial court to be clairvoyant wereit to be held accountable to instruct on a theory heretofore unknown in the law. . The Court of Appeal’s opinion imposedan impossible duty on the trial court—to instruct on its own self-made theory of voluntary manslaughter, retroactively. Thetrial court’s duty to instruct sua sponte on lesser instructions does not extendto indistinct and undeveloped theories of law. (People v. Flannel, supra, 25 Cal.3d at pp. 682-683.) There was no duty to instruct on the Court of Appeal’s newly discovered and fashioned theory.” Finally, a similar argumentis presented to this Court in Peoplev. Cravens (8186661) that is currently under review. Thatis, the Attorney General argued the Court of Appeal abused its authority to review for sufficiency of the evidence of a second degree murder conviction, whenit found noevidenceto support the jury’s implied malice verdict and then telied on Garciato affix voluntary manslaughter liability. However, in Cravens’ Answer on the Merits, Cravens agreed the Court of Appealerred in extending a new theory of voluntary manslaughter not recognized by statute. Since Cravenshas ostensibly abandonedhis claim to the Garcia theory of voluntary manslaughter, this Court may choosenotto addressthis issue in Cravens. Then,a grant of the instant petition is imperative. In the ? Notably, the trial court did instruct on the two well-established theories of voluntary manslaughter—heat ofpassion and imperfect self- defense. (10 RT 1907-1909.) The jury rejected these lesser included offenses. 12 alternative, respondent requests that this Court order a grant and hold on this case pending the resolution of Cravens. Review of this matter is necessary to provide guidance on thevalidity of the Court of Appeal’s assertion that Garcia created a third theory of voluntary manslaughterthat should be appliedby thetrial courts. The Court of Appeal’s opinion created a whole new specie of voluntary manslaughter premised merely on dicta, and imposed an impossible duty uponthetrial court to have anticipated this judicial discovery. This Court should grant review to provide guidance onthecorrectstatus of the crime of voluntary manslaughter. | CONCLUSION Accordingly, for the reasons stated above, Respondentrespectfully requests this Court grant review in the presentcase, or in the alternative order a grant and hold pending the outcome ofPeople v. Cravens. Dated: September8, 2011 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General KRISTEN KINNAIRD CHENELIA Deputy AttorneyGeneral Attorneysfor Plaintiffand Respondent KKC:sam $D2010701060 70497966.doc 13 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point Times New Romanfont and contains 3950 words. Dated: September8, 2011 KAMALAD. HARRIS Attorney General of California - Se KRISTEN KINNAIRD CHENELIA Deputy Attorney General Attorneysfor Plaintiffand Respondent KKC:sam $D2010701060 70497966.doc OPINION AG CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA Cattst Appeal Fourth District . FILED AUG 09 2011 THE PEOPLE, D057570 Stephen M. Kelly, Clerk DEPUTY Plaintiff and Respondent, Vv. (Super. Ct. No. SWF014495) AMALIA CATHERINE BRYANT, Defendant and Appellant. APPEAL from ajudgment of the Superior Court of Riverside County, TimothyF. Freer, Judge. Reversed with directions. | | AnthonyJ. Dain, under appointment by the Court ofAppeal, for Defendant and Appellant. | Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attomey General, James H. Flaherty III and Kristen . Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent. I. INTRODUCTION A jury found Amalia Catherine Bryantnot guilty of first degree murder, but guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189).1 Thejury also found that Bryant personally used a deadly or dangerous weapon within the meaningofsection 12022, subdivision \(1), in committing the murder. Thetrial court sentenced Bryant to an aggregate term of 16 yearsto life in prison. On appeal, Bryant claims that the trial court erred in failing to instruct the jury, sua sponte, on the lesser includedoffenses of voluntary manslaughter (§ 192, subd. (a)) and . involuntarymanslaughter (§ 192, subd. (b)). With respect to voluntary manslaughter, ‘Bryant claimsthat the trial court committed reversible errorin failing to instruct the jury, sua sponte, pursuant to People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia), that an unintentionalkilling committed without malice during the course of an inherently dangerousassaultive felony constitutes voluntary manslaughter, With respect to involuntary manslaughter, Bryant contendsthat the trial court was required to instruct the jury to consider whether she was guilty of misdemeanor manslaughter based on an unlawful killing occurring in the commission of the misdemeanoroffense of brandishing a deadly weapon (§ 417, subd. (a)(1)). Bryantalsoclaims that the court was required to © instruct the jury to consider whether she was guilty of involuntary manslaughter based on I Unless otherwise specified, all subsequentstatutoryreferences are to the Penal Code. . 2 an unlawfulkilling occurring in the commission of a lawful act done with criminal negligence. Weconcludethatthetrial court committed reversible error by failing to instruct the jury on the theory of voluntary manslaughter articulated in Garcia. Wereject Bryant's contention that the court erredin failing to instruct the jury on involuntary manslaughter. We reverse the second degree murder conviction and permit the People to retry Bryant on a charge of second degree murder. If the People do notbring Bryantto retrial on a charge of second degree murder, the judgmentshall be modified to reflect a Se conviction for voluntary manslaughter, andthetrial court shall resentence Bryant accordingly. IH. FACTUAL AND PROCEDURAL BACKGROUND A. The prosecution's evidence l. ‘Bryant's relationship with the victim Bryant and victim Robert Golden(Robert) started dating in late 2003, a few months after Robert graduated from high school. In the spring of 2004, Bryant discovered that she was pregnant withtwins. In the summerof2005, Bryant and Robert . moved in together. During the fall of 2005, Robert told several people that he was unhappy in the relationship and that he wanted to leave Bryant. 2. The stabbing OnNovember 4, 2005, which was Thanksgiving Day, Bryant and Robert went to . Robert's aunt's house for dinner. Robert and Bryantleft at approximately 7:30 p.m. 3 After they had returned home, Robert's mother, Andrea Golden (Andrea), stopped by Robert and Bryant's apartmentfor a short time. Robert was playing video gamesand told Andrea that Bryant had goneto bed. At about8:45 p.m., several neighbors heard Bryant screamingfor help. The neighbors went to Robert and Bryant's apartment. Robert was lying in the doorway of the apartment on his stomach, face down, and Bryant was next to him. Bryant was hysterical and was screaming, “Someonecall 911," “Please call an ambulance," and, "I think [ stabbed him. I think I stabbed him." A neighbor called 911. | ‘* | Deputy Joseph Narciso ofthe Riverside County Sheriff's Department responded to the apartmentat 8:53 p.m. Deputy Narciso-asked Bryant "who stabbed"the victim. . Bryant responded, "I did." Paramedics took Robert to the hospital, where he was pronounced dead. | 3. The autopsy Dr. Aaron Gleckman performed an autopsy on Robert's body. Robert was six feet one inchtall and weighed approximately 285 pounds. Dr. Gleckman testified that Robert died from a four-inch to five-inch deep stab wound that passed through both his xiphoid process (the small bone below the sternum) andhispericardium (a tough fibrous membranethat surrounds the heart), and penetrated the right ventricle of his heart. The stab wound was angledslightly upward. Dr. Gleckman testified thatit would take a - “significant amount of intentional force"to inflict the stab wound, and that a person could not simplywalk into a knife and have the blade penetrate fourto five inches into his . body.- Robert had also suffered several other less serious injuries. He had a one-inch bruise underneath the surface of his scalp on the back right side ofhis head, and a one- by-one-half-inch ecchymosis(bleeding underthe skin) on the left side of his back. Robert also had somescratches on the right side of his forehead, abovehis mouth, and on the left side of his chin. Robert had approximately seven incised wounds on hisleft forearm and a one-inch-longcurvilinear incised wound onthe back ofhis left wrist. In addition, Robert had cuts or scratches on several fingers, bruising on one of his hands, and bruising onhis left forearm. i 4. Bryant's interview with police The People played anaudiotape of an interview that Lieutenant Cheryl Evans of the RiversideCounty Sheriff's Department conducted with Bryant on the aftemoon after the stabbing. During the interview, Bryant described the events that led up to the stabbing, Bryant explained that after she and Robert returned to their apartment from Thanksgiving dinner, she put on a red negligee in an attemptto entice Robert into having sex. However, Bryant changed her mind about wanting to have sex with Robert after writing in her journal. Bryant began to listen to some music, and started to call a friend on the telephone. Robert asked Bryant who she was calling, and Bryanttold him thatit was “none of his business." In response, Robert unpluggedthe phone and hitBryant on the leg with the phone. Bryant swunga ceramic doll at Robert but missed. Robert then pushedBryant downonthe bed andstarted to strangle her. Bryant could notbreathe. - Bryant was eventually able to get free from Robert. She picked up a glass candle holder. and then grabbed a knife from the dresser drawerandstarted to cut herself‘with the. knife.2 Robert lunged at Bryant while holding a hair brush. Bryant threw the glass candle holder at Robert. The candle holder shattered whenit hit the ground. Robert then knocked the knife out of Bryant's hand with the brush. Bryant picked up shards of glass from the broken candle holder and tried to cut her wrists. with them,telling Robert that she was goingto kill herself. Robert responded, "Doit. Just doit. . . . [D]on't hurt ‘anyoneelse." | | 7 ve Afterdeciding that she did not want to give Robert the pleasure of seeing her die, Bryant walked toward the front door in an attemptto leave the apartment. Robert blocked Bryant's path to the front door. Bryant grabbed a telephone and hit Robert in the head withit. Bryant then grabbed a knife from the kitchen table and-said, "You better let me leave orI'll hurt you." Bryant “Jabbed at [Robert] with the knife," and Robert grabbed Bryant's hahdin attempt to wrest the knife from her. While struggling overthe knife, Robert bit Bryant. Bryant broke free momentarily and stabbed Robert with the knife as he came towardher. 5. Physical evidence At approximately 2:00 a.m. on the morning after the stabbing, Lieutenant Evans conducted a physical examination of Bryant. Bryant was wearing red satin negligee. She had a fresh bruise on thebackofherlefi thigh/buttock area and older bruising on her 2 Bryant explained that she would sometimescut herself because shewas unableto cope with her depression. 6 arms. Bryant also had an indentation injury to her thumb, and a one-half-inch red mark on theleft side of her neck.3 In addition, Bryant had numerousscars on her wrists from cutting herself, and several small, fresh cuts nearher wrists. Police conducted a search of Robert and Bryant's apartment. In the master bedroom,police discovered a telephone cord that had been removed from the wall, a knife in a dresser drawer,a hardplastic doll, and a battery cover to a phone. In the hallway outside of the bedroom, police found the broken glass candle holder. There was _a large concentration of blood onthe carpet and linoleum in the living room, anda trailof +» - blood leading to the front door. A faceplate and the handsetto a cordless telephone were on the living room floor near the front door. Police found a knife with a blade that was approximately six and one-half inches long, with blood on both sides of the blade, on top of a book on the kitchen counter. During the People's case-in-chief, numerousentries from Bryant's diaries and online journals wereread to thejury. Mostoftheentries were written in the fall of 2005, and focusedprimarily on Bryant's feelings of inadequacy stemming from her love/hate relationship with Robert. | B. The defense As discussed in greater detailin part III.A.1., post, Bryant acknowledged at trial: that she stabbed Robert. During closing argument, defense counsel argued that Bryant had stabbed Robert in self-defense and that Bryant had not intended to kill Robert. 3 WhenLieutenant Evans examined Bryant 12 hours later, the mark on Bryant's neck was gone. 7 Counsel argued thatif the jury were to find that Bryant had not acted in self-defense, the jury should find her guilty of voluntary manslaughter, based upon either imperfect self- defense or heat of passion. C. Rebuttal Andreatestified that she believed Bryant had beenthe aggressor during prior incidents of domestic violence between Robert and Bryant. Bryant's friend testified that Bryantlovedattention and said that she would make herself appear to be the victim in an attempt to draw attention to herself. | . IT, DISCUSSION The trial courtproperly did not instruct thejury on involuntary manslaughter, but _committed reversible error in failing to instruct thejury on the theory of voluntary manslaughter described in Garcia ‘A. —Bryant's claimson appeal In her opening brief, Bryant claimsthat the trial court erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter. In their respondent's . brief, the People argue that the evidencedid not support an instruction on involuntary manslaughter because Bryant's own testimony demonstrated that she committed a felony assault with a deadly weapon. | | Neither party cited Garcia, supra, 162 Cal.App.4th 18 in its initial briefing. In Garcia, as discussed in greater detail below, the Court of Appeal held that a trial court hadnoterredin failing to instruct a jury on involuntary manslaughter because the evidence established that the defendant had,at a minimum, killed the victimduring the 8 commissionofan inherently dangerous felony, namely, an assault with a deadly weapon. (Id. at p. 33.) The Garcia court reasonedthat an unintentionalkilling without malice committed during the course of an inherently dangerousassaultive felony constitutes - voluntary, rather than involuntary, manslaughter. (/d, at pp. 31-33.) In view ofthe People's argument that Bryant's testimony establishes that she committed a felony assault with a deadly weapon, and considering other evidence presented attrial, we requested that the parties submit supplemental briefs addressingthis aspect of Garcia. Inher supplementalbrief, Bryant claimsthat the trial court committed we reversible error byfailing to instruct the jury, sua sponte, that an unintentionalkilling without malice committed during the course of an inherently dangerous felony constitutes voluntary manslaughter. In their supplemental brief, the People maintain that the trial court had no sua sponte duty to provide such an instruction in this case because "[Bryant's] testimony defied any possibility that she acted without implied malice when she killed [Robert]." | B. The law governing whethera trial court must instruct thejury on lesser included offenses, and the standard ofreview on appeal The law governinga trial court's duty to instruct the jury on lesserincluded offenses, and the standard ofreview that this court applies in reviewinga trial court's decision regarding whether to give such an instruction, are well established: -" Instructions on lesser included offenses must begiven when there is substantial evidence for ajury to conclude the defendantis guilty of the lesser offense but not the charged offense. [Citations.] Substantial evidenceis defined for this purpose as 'evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.] In deciding 9 whetherevidenceis "substantial" in this context, a court determines only its bare legal sufficiency, not its weight.' [Citation.] Thetrial court's decision whetheror not the substantial evidence test was met is reviewed on appeal under an independent or de novo standard of review. [Citations.]" (Garcia, supra, 162 Cal.App.4th at pp. 24- 25.) C. Garcia In Garcia, supra, 162 Cal.App.4th at page 22, the Court ofAppeal considered whetherthetrial court had a sua sponte duty to instructon involuntary manslaughter wherethereis substantial evidencethat the defendant committed an unintentionalkilling without malice during the course of an inherently dangerous assaultive felony. The defendantin Garciastruck the victim in the face with the butt of a shotgun, causing the victim to fall and hit his head on the sidewalk. The victim died as a result of the injuries he sustained in the fall. (/bid.) A jury found the defendantnot guilty of murder, but guilty of the lesser included offense of voluntary manslaughter. (/d. at p. 23.) The defendant claimed on appealthatthetrial court had erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter because there was substantial evidence that the killing was "committed without malice and withouteither an intentto kill or conscious disregard for human life and, therefore, was neither murder nor voluntary manslaughter." (Jd.at p. 26.) The Garcia court rejected the defendant's claim. (Garcia, supra, 162 Cal.App.4th at p. 22.) The Garcia court began its analysis by discussing the distinction between murder and manslaughter: _ "Murderis theunlawful killing of a humanbeingor a fetus 'with malice aforethought.' [Citations.] 'Express malice’ is an-unlawful 10 intent to kill. [Citations.] Implied malice’ requires a defendant's | awareness of engaging in conduct that endangers the life of another. [Citation.] ‘Malice is implied when the killing is proximately caused by " ‘an act, thenatural consequences ofwhich are dangeroustolife, whichact was deliberately performed by a person who knowsthat his conduct endangers the life of another and whoacts with consciousdisregard forlife.'"' [Citations.]" (Garcia, supra, at pp. 26-27, fn. omitted.) “Manslaughteris the ‘unlawful killing of a human being without malice." (Citations.J" (Garcia, supra, 162 Cal.App.4th at p. 27.) The Garcia court referred to two well-established theories of voluntary manslaughter, namely, where a defendantlacks malice either because heacts in “unreasonable self-defense" or in the “heat of passion." (/d. at p. 27.) The Garcia court described the offense of involuntary manslaughterin the following manner: "Thestatutory definition of involuntary manslaughterlimits the offense, other than for acts committed while driving a vehicle, to the — unlawful killing of a human being without malice ‘in the commission ofan unlawfulact, not amountingto [a] felony; or in thecommission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.' [Citation.] Involuntary manslaughter based on‘an unlawful act, not amounting to [a] felony' —a killing resultingfrom the commission of a misdemeanor— requires proofnotonly that the defendant acted with general criminal intent butalso that the predicate misdemeanor was dangerous to human life under the circumstances of its commission. {Citations.] Involuntary manslaughter based .on the commission ofa lawful act thatmight produce death 'without due caution and circumspection’ requires proofofcriminal negligence—thatis, ‘aggravated, culpable, gross, or reckless' conductthat creates a high risk of death or great bodily injury and that evidences a disregard for humanlife or indifference to the consequencesofthe conduct. [Citations.]" (/d. at pp. 27-28.) TheGarcia court observed that California law was not clear as to what homicide offense,if any, is established where a defendant commits an unintentional killing, 11 without malice, during the course of a felony that does not qualify the defendant for either first or second degree felony-murder. (Garcia, supra, 162 Cal.App.4th at p. 28.) After reviewing the relevant case law, including a discussion of second degree felony-murder and the "merger doctrine"(id. at p. 29),4 the Garcia court concluded that “an unlawfulkilling during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter." (/d. at p. 31.) Garcia thus articulates a third theory of voluntary manslaughter, in addition to the well-established theories of unreasonable self-defense and heatofpassion. ke In applyingthe law pertaining to the various homicideoffenses to the facts at issue in that case, the Garcia court noted that the evidence "unquestionably" demonstrated that the defendant"committed an assault with a deadly weapon/firearm on [the victim], an inherently dangerous felony, causing [the victim's] death." (Garcia, supra, 162 _ Cal.App.4th at pp. 31-32.) The Garcia court held that in light of this evidence, thetrial court had noterred in failing to instruct on involuntary manslaughter, reasoning: "Because an assault with a deadly weapon or witha firearm is inherently dangerous, the trial court properly concluded the evidencewould not support {the defendant's] conviction for involuntary manslaughterand, therefore, did noterr in decliningto instruct . 4 The Garcia court explained that while a defendant maybe found guilty of second © degree felony-murder based on an unintentionalkilling committed without malice during the course of an inherentlydangerousfelony, this theory does not apply where the underlying felony is an aggravated assault, in light of the "merger doctrine"first recognized in People v. Ireland (1969) 70 Cal.2d 522. (Garcia, supra, 162 Cal.App.4th at pp. 28-29; see also People v. Chun (2009) 45 Cal.4th 1172, 1178 (Chun) [all assaultive-type crimes . .. merge with the charged homicide and cannotbethebasis fora - second degree felony-murderinstruction"].) 12 . the jury on involuntary manslaughter as a lesser included offense of murder." (/d.at p. 22; accord People v. Parras (2007) 152 Cal.App.4th 219, 228 [rejecting contention that the trial court erredin failing to instruct the jury on involuntary manslaughter because, "If this homicide occurred during the commission of another criminal offense, that offense was a felony, not the misdemeanor required under this theory"].) D. Factual andprocedural background 1. Relevantevidence a. . Expert testimony Dr. Paul Hermann,a forensic pathologist, testified concerning Robert's stab wound. Dr. Hermann testified that "it wouldn't take a whole lot of force" to cause the wound, and that "[a] sharp knife could to go through the skin, and directly into the heart, perhapsincising the bone." After reviewing Dr. Gleckman's autopsy report on the stand, Dr. Hermannstated, "So [Dr. Gleckman's] description is it goes through the bone, and that [maybe] it.actually cut the bonein half. If that's the case,it would take somewhat more force than it would just going through the skin. But, it's not a very large bone, soa little hard to tell how muchforce it's goingto take." Dr. John Thornton, a forensic scientist, testified that the physical evidence in the case was consistent with there having been.a struggle between Robert and Bryanton the _ nightofthe stabbing, 5 -In considering whetherthe trial court had a sua sponte duty to instruct-the jury on the lesser included offenses of voluntary or involuntary manslaughter, we construe the relevant evidenceinthe light most favorable to Bryant. (See People v. Turk (2008) 164 Cal.App.4th 1361, 1368.) - 13 b. Bryant's testimony Bryanttestified that she and Robertstarted dating around September 2003, shortly after his high school graduation. Bryant had graduated from high school the prior year. Bryantclaimed that Robert had frequently physically abused her throughout their relationship, and she recounted numerous instances of such domestic violence during her testimony. Bryantstated that when the couple argued, Robert often physically restrained her, choked her, and/or hit her. Bryant described an incident during which Robert hit her in the stomach while she was pregnant, and another incident during which Robert tackled te her into a wall. During this latter incident, Bryant claimed that she lost consciousness andthat the force of her body hitting the wall created a hole in the wall. Bryant stated that a few days before the stabbing, she and Robert got into an argument in their apartment. Whenshetried to leave the apartment, Robert pushedherto the floor, held her down by her arms and shook her.® Bryant testified that on the night of the stabbing, she went into her bedroom at approximately 8:00 p.m. and began to write in her journal. Robert remainedin the living room. Bryant wrote in her journal for approximately 10 minutes,? and then listened to 6 The defensepresented photographsofbruises on Bryant's armstaken shortly after the stabbing. Bryanttestified that these bruises stemmed from theincident a few days prior to the stabbing. 7 Bryanttestified that she wrote in her journal that Robert had ignored her throughoutthat entire day, which was Thanksgiving, and that she had contemplated not attending the family's Thanksgiving dinner. Bryant explained that she was "really angry" when she was writing in herjournal. Bryant also noted that she wrote in the last - - paragraph ofthe journal entry for that day: 14 some music for a half hour or so. Bryant testified that after listening to the music, she "wanted to leave." Bryant explained, "{After] thinking about whatI wrote in my diary .. . 1 wanted out oflife in generalandjust, you know,dealing with all [of] this." Bryant grabbed Robert's pillows and a blanket from their bed, walkedto the living room, threw the pillows and blanket on the living room floor, and told Robert that she did not want to be in the relationship anymore. Bryanttheri grabbed a cordless phone from the kitchen table and started to walk toward her bedroom. Robert demanded to know who Bryant was calling. Bryant told we Robert that it was "none of his business," and proceeded to dial her friend's phone number. Beforeherfriend could answerthe call, Robert unplugged the telephone from the jack. Bryant began to yell that she wanted to leave. Robert grabbed the phone from Bryant and hit her on her upperright thigh with it. After hitting Bryant, Robert got on | top of her.and started to choke her. Bryant began to lose consciousness. Bryant was able to get Robert off of her. She then grabbed a doll that was on a dresser, and swung the doll atRobert. Robert was able to avoid being struck by the doll, and left the bedroom. After Robert left the room, Bryant closed the door. Once the door was closed, Bryant grabbed a glass candle holder andtried to break it. Robert forced his way back into the bedroom, and Bryant threw the candie holder and the phone at him. The candle holdershattered in the hallway, and the phone landed atthe "T'm seriously thinking of having an affair. I need so muchmore that he can't, won't give me. I want to leave with thekids and just go. I don't know where. I need love." 15 opposite end ofthe hallway.8 Robert continued to advance toward Bryant, holding a pink hairbrush. Bryant grabbedher "cutting knife"? from a desk drawer because she wanted to scare Robert. Bryant stated that she threatened Robert with the knife, explaining, "I told him if he didn't let meleave, | was goingto kill him." Bryant began to cut her arm with the knife, inflicting very minor scratches. Robert knocked the knife out Bryant's hand andleft the room. Bryantthen went into the hallway, picked up some broken shards of glass from the candle holder, and told Robert that she was going to kill herself. According to Bryant, Robert responded, "Doit. Just do ig it." He also said, “Don't hurt anybodyelse," or words to that effect. | Bryant decided that she wanted to leave the apartment. She got up and started to walk toward the door. According to Bryant, Robert told her, "No, you can't leave. You can't leave. Just do it. Just kill yourself." Robert pushed Bryant away from thefront door. Bryant grabbed the phonethat wasin the hallway and hit Robert over the head | with it. The blow did not affect Robert. Bryant backed up and saw a knife on the kitchen table.10 Bryant grabbed the knife, while Robert remained by the front door. Bryant moved towardthe front door, holding the knife and screaming, “Let me leave." Bryant stated that she "thrust[the knif¢] at him andpulled back." Robertgrabbed’ 8 Bryant implied that neither object struck Robert. a Bryant explained that she started cutting her armsat the age of 13 "[t]o relieve _ Stress." Bryant stated that she had continued to cut herself throughouther relationship with Robert. . 10 - Bryant explained that this knife was a different knife from her"eutting knife," which she had discussedearlier in her testimony. 16 the wrist of the hand in which Bryant was holding the knife. The twostruggled over the knife until Bryant was able to break free. With respect to the stabbing, Bryanttestified as follows: "[Bryant]: He came at me, and I thrustthe knife at him. "(Defense counsel]: And how did youthrust the knife at him[?] "[Bryant]: Like this. "(Defense counsel]: And were youstanding up? "(Bryant]: Yes, I was. | Wee "(Defense counsel]: And for the record, you were describing that you held the knife in a fist, and you pushed out—pushed out forward. Is that right? "{Bryant]: That's correct." On cross-examination, Bryant described the stabbing as follows: " [Prosecutor]: And youtook that knife and you plungedit forward into his chest? _ “(Bryant]: It wasn't deliberate. "(Prosecutor]: Well, ma'am, did your arm accidently just go like this, like you described, or did you intentionally take that sharp knife in your hand—you knew it.was sharp,right? "(Bryant]: Yes. "[Prosecutor]: And youplungedit forward towards the man who was standingin front ofyou? "[Bryant]: He was lungingat me, yes." 17 Bryantstated that after she thrust her hand out, she “didn't feel anything," and that _ She thereafter pulled the knife out. According to Bryant, Robert said, “You stabbed me," in a surprised tone. During cross-examination, Bryanttestified that she did not knowthat she had stabbed Robert until she saw “all the blood." Bryant immediately ran to a neighbor's house screaming, "Help," and "Call 911."11 Whenthe police arrived and asked Bryant what had happened, she responded, "y stabbed him." Bryanttestified that she never intendedto kill Robert. c, Responding officers’ testimony | | | ve | Riverside County Sheriff's Deputy Fred Bommertestified that when he placed Bryantin his patrol car, she was “still hysterical," but that “after a while, she calmed down." Bommer further testified that while Bryant was sitting in his police car immediately after the stabbing, she said, "[T]his wasn't supposed to happen." Detective Erik Davis of the Riverside County Sheriff's Departmenttestified that a neighbor told him that,just after the stabbing, Bryantsaid, "I didn't mean to. Just wake up, Rob." Detective Davis also testified that the neighbor told him that Bryant wasupsetand had been screaming, "Wake up. Wake up please,” and "I didn't mean it. I didn't mean it. Wake up. Wake up." — 1] Asnoted in part I1.A.2, ante, several neighbors heard Bryant screamingfor help. Whenthe neighbors arrived at Bryant and Robert's apartment, Bryant was crying and talking fast. The neighbors described Bryant as "scared" and "hysterical." 18 d. Lieutenant Evans's interview with Bryant The defense played a redacted videotape of an interview that Lieutenant Evans conducted with Bryantin the early morninghours on the day afterthe stabbing. !2 Duringthe interview, Bryantstated that during previous arguments, she had "threatened to kill [Robert] a couple of times, but I never meantit," and that "[i]n our arguments [Robert has] threatened the same thing." Lieutenant Evans asked Bryant why she had attempted to break the candle holder on the dresser during the struggle. Bryant responded, “Because.. . I wanted him to know how mad I was. I wanted... to either ee use that to cut myself or kinda use that to push him out the door but like I neverreally wanted to stab him or anything. I just wanted to, you know,get him... to back away from me so he wouldn't hurt me anymore." Lieutenant Evans asked Bryantto demonstrate how Bryant had stabbed Robert. Bryant extended herleft arm out slightly, in a jabbing motion, and said,"It was just.a lunge like that,"13 Lieutenant Evansasked, "How manytimes do you think youthrust the knife at him?" Bryant responded, "Just once. Just the one time.” During this interview, Bryantalso said, "He wasn't supposedto get hurt." Lieutenant Evans responded by askingBryant what she was thinking when she "grabbed the knife" before stabbing Robert. Bryant responded, "I wanted to scare him. I wanted to 12 As noted in part I1.A.4., ante, the People played an audiotape of a separate interview that Lieutenant Evans conducted with Bryantin the afternoonthe dayafter the stabbing. . 13 _ Bryant wassitting in a chair while she performed this demonstration for Lieutenant Evans. , 19 scare him. It was just supposed to bea tool to getto the door. 1 was never supposed to touch him." Bryant wascrying and emotionalthroughoutthe interview, and asked whether Robert was going to be okay. Near the end ofthe interview, when Lieutenant Evanstold Bryant that Robert had died, Bryant began sobbing uncontrollably and later vomited. 2. The trial court'sjury instructions Thetrial court instructed the jury on first and second degree murder (CALCRIM Nos. 520, 521), as well as the lesser included offense of voluntary manslaughter based on ee imperfect self-defense (CALCRIM No. 571) and heat of passion (CALCRIM No. 570). The trial court also instructed the jury on the principlesofa justified killing based onself- defense (CALCRIM Nos. 505, 3471, 3472, 3474). E. The trial courtproperly did not instruct thejury on involuntary manslaughter because the record establishes that, at a minimum, Bryant committed an assault with a deadly weaponthat resulted in the victim's death|4 I. The elements ofassault with a deadly weapon The elements of an assault with a deadly weaponare as follows: (1) the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to aperson; (2) the defendant was awareoffacts that wouldlead : a reasonable personto realize such nature of the deadly weapon; (3) the defendant did the act willfully; and (4) the defendanthad the presentability to apply force with the deadly 3 14 For purposes of our analysis, we assumethat the jury would not have found that Bryant acted inperfect self-defense. If Bryant had actedin perfect self-defense, she would notbe guilty of any offense,including involuntary manslaughter. 20 weapon. (§§ 240, 245, subd. (a)(1); People v. Williams (2001) 26 Cal.4th 779 (Williams), CALCRIM No. 875,)!5 In Williams, supra, 26 Cal.4th 779, the Supreme Court clarified the intent necessary to be found guilty of committing an assault. The Williams court expressly rejected the contention that “assault requires either a desire to cause an application of . physical force or substantial certainty that such an application would result." (Id. at p. 784.) Instead, the Williams court held that, “assault requires actual knowledgeofthe facts sufficient to establish that the defendant's act by its nature will probably and directly + result in injury to another.” (/d. at p. 782.) The Williams court explained that "mere recklessness or criminal negligenceisstill not enough [citation] because a jury cannot find a defendantguilty of assault based on facts he should have known but did not know {citation]." (/d. at p. 788, fn. omitted.) 15 Assault with a deadly weapon is a “wobbler,"i-e., it may be punished eitheras a felony or a misdemeanor. (§ 245, subd. (a)(1):) However, "[a] wobbler is deemed a felony unless charged as a misdemeanorby the People or reduced to a misdemeanor by the sentencing court under section 17, subdivision (b). [Citation.]" (Robert L. v.. Superior Court (2003) 30 Cal.4th 894, 901, fn. 7.) Therefore, unless charged as a ‘misdemeanor, “assault with a deadly weapon. .. [is a] .. . felon[y]" thatcannot serve as the basis of a misdemeanor manslaughteriinstruction. (Garcia, supra, 162 Cal.App.4that p. 28, fn. 4.) 21 2. Bryant's testimony established that she committed, at a minimum, an assault with a deadly weapon With respect to the first elementof assault with a deadly weapon, Bryanttestified that she thrust a knife toward Robert as he advanced toward her. On cross-examination, Bryant agreed with the prosecutorthat, while holding the knife, she plunged her arm toward Robert, and described Robert's action as "lunging"at heratthe time she stabbed him. Thus, Bryant did an act with a deadly weaponthat by its nature woulddirectly and probably result in the application of force to a person. With respectto the second clement, Bryant agreed with the prosecutor that she knew that the knife was "sharp" and that she was in possessionof a "dangerous weapon." Thus, Bryant was awareoffacts _ that would lead a reasonable person to realize the nature of the deadly weapon. With ~ respect to thethird element, even assuming that Bryant's testimony does notestablish that: she hadthespecific intent to stab Robert, “assault does not require a specific intent to injure the victim" (Williams, supra, 26 Cal.4th at p. 788), and Bryant's testimony does establish that she had "actual knowledge of thefacts sufficient to establish that [her] act {of thrusting her knife-wielding arm toward the oncomingvictim] by its nature will ' probably and directly result in injury to another." (Ud. at p. 782.) The final element, that the defendanthadthe presentability to apply force with the deadly weapon, was undisputedly satisfied whenBryant's knife contactedRobert's chest. The evidence thus demonstrated that the defendant"committed an assault with a deadly weapon. . . on [the victim], an inherently dangerous felony, causing [the victim's] death." (Garcia, supra, 162 Cal.App.4th at pp. 31-32.) Therefore, as in Garcia, if the 22 jury were to find Bryant guilty of a homicide offense, the evidence established that Bryant committed “at least voluntary manslaughter.” (/d. at p. 31.) Thetrial court therefore properly did not instruct the jury on involuntary manslaughter. (/d. at p. 33 ["in light of the undisputed evidence [the defendant] assaulted [the victim] with a deadly weapon.. . there was not sufficient evidence in this case [that] the killing of [victim] was involuntary manslaughter"].) 3. Bryant's arguments in support ofher claim thatthe trial court erred in failing to instruct on involuntary manslaughter are unpersuasive Wereject Bryant's claim thatthe trial court was required to instruct the jury on involuntary manslaughter based on the theory that the killing resulted from Bryant's commission of the misdemeanoroffense ofbrandishing a deadly weapon. (§ 417, subd. (a)(1).)!16 Forthe reasons discussed above, there was no substantial evidence from which the jury could have found that Robert's death resulted from the misdemeanoroffenseof brandishing, rather than from a felony assault with a deadly weapon. Bryant's reliance on People v Lee (1999) 20 Cal.4th 47 (Lee) (plur. opn. of Baxter, J.)!7 in support of her claim that there is substantial evidencein this case to support a misdemeanor manslaughterinstruction is unpersuasive. In Lee, the defendant, who was extremely 16 Section 417, subdivision (a)(1) provides, "Every person who, except in self- defense, in the presence ofany other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner,or whoin any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrelis guilty ofa misdemeanor, punishable byiimprisonment in a county jail for not less than 30 days." 17 ~ Unless otherwise specified, all subsequent citations to Lee are to Justice Baxter's - plurality opinion. 23 intoxicated, began to argue with his wife. (/d. at p. 53.) One ofthe couple's children, 12- year-old Mary, saw her parents "arguing and pushing each other." (/bid.) The defendant wentto hisbedroom "staggering andfalling againstthe wall," and retrieved a handgun. (Ibid.) The couple “continued to push each other with the gun between them." (bid.) Mary wentto her bedroom, heard herparents arguing, and then heard a shot. (lbid.) When Mary cameout of her bedroom, she saw her father holding her motheronthefloor, begging her not to die. (/bid.) The Lee court heldthatthe trial court erred in failing to instruct the jury on a "misdemeanor manslaughter" theory of involuntary manslaughter Me because the defendant's use of the gun during the argument constituted the misdemeanor offense of brandishing the weapon. (/d. at p. 61.) | In Lee, there was evidencethat the killing occurred while the defendant was extremely intoxicated and holding a gun while engaged in a physical struggle with his wife. In addition, there was an absence of evidence.as to the mechanism by which the gun wasactually fired.!8 Under these circumstances, the jury in Lee could have reasonably found that the gun wasaccidentally fired during the scuffle, and thus, that the defendant was guilty of involuntary manslaughter based on killing resulting from the commission of a misdemeanorbrandishing. In this case, in contrast. in light of Bryant's testimony, there is no reasonable wayto view the evidence as demonstrating anything 18 The Lee plurality did not expressly state that there wasanabsence of evidence concerning howthe fatal shot was fired, but it implied as much by not discussing any such evidence. (See-also Lee, supra, 20 Cal.4th at p. 82 (dis. opn. of Kennard, J.) [There was no eyewitness testimony concemingthe final minutes of:the confrontation between defendant andhiswife, the victim"].) 24 less than an assault with a deadly weapon—afelony. Thetrial court therefore did not err in failing to instruct the jury on involuntary manslaughter based on a killing resulting from the commission of a misdemeanorbrandishing, under Lee. For a similar reason, wealso reject Bryant's contention that the trial court was required to instruct on involuntary manslaughterbased ona killing resulting from the commissionofa lawful act committed with criminal negligence, pursuant to People v. Villanueva (2008) 169 Cal.App.4th 41. In Villanueva, the court stated that "a homicide is excusable when a defendant accidentally kills while brandishing a weaponin self- defense, if the defendant acted with usual and ordinary caution"(id. at p. 54), and “[i]f - the act is done in a criminally negligent manner, the homicideis involuntary 7 manslaughter.” (/d. at p. 54, fn.12.) In this case, for the reasons stated above, Bryant's act in stabbing Robert was at least a felony assault with a deadly weapon. Thus, the | record does not contain substantial evidence from which thejury could find that Bryant acted in a mannerthat was merely criminallynegligent. (See Williams, supra, 26 Cal.4th at p. 788 [defendant maynot be convicted of assault based upon “mere recklessness or criminalnegligence"].) F. Thetrial court erred inSailingto instruct thejury on the Garcia theory of voluntary manslaughter because there was substantial evidence that Bryant did not subjectively appreciate that her conduct endangered Robert's life The People do notdispute that, under Garcia,the trial court would havehad a sua sponte duty to instruct the jury that an unintentionalkilling without malice committed during the course ofan inherently dangerous assaultive felony constitutes voluntary manslaughter. The People acknowledge as muchin their supplemental brief: 25 “The Garcia theory of voluntary manslaughter differs from implied malice murderin that the defendant [does] not subjectively appreciate the lethality of his or her conduct. Thelinchpin of implied malice murderis that before a defendant can be convicted of that crime, there must be evidence that the defendant appreciated that his deliberate conduct endangeredthelife of another and that the defendantacted with consciousdisregard forlife... . [{] Accordingly thetrial court [had] a sua sponte duty to instruct on the Garcia theory of voluntary manslaughterifthere were substantial evidence that appellant did not subjectively appreciate that her conduct endangered [Robert's] life." However, the People maintainthat the court had no duty to give this instruction in the present case because there was not substantial evidence in the record from which the jury we could have foundthat Bryant did not subjectively appreciate that her conduct endangered Robert's life.19 Viewing the evidencein the light most favorable to Bryant, asis required (People v. Turk, supra, 164 Cal.App.4th at p. 1368), we conclude that there is substantial evidence fromwhich areasonable jury could find that Bryant did not subjectively appreciate that her conduct endangered Robert's life. To begin with,the stabbing occurred during a heated physical struggle shortlyafter Robert had attempted to. wrest the knife from Bryant, and while he was lunging toward her. Robert expressed surprise that he had been stabbed, and Bryanttestified that she did not knowthat she.had stabbed | Robert until she saw him bleeding. There alsois undisputed evidence that Robert - suffered a single stab wound,as well as expert testimony that "it wouldn't take a whole 19 This theory of voluntary manslaughteris at issue ina case currently pending before the Supreme Court. (See People v. Cravens (Aug. 18, 2010, D054613) [nonpub. opn.] review granted Nov. 23, 2010, S186661.) 26: lot of force" to have caused Robert's wound. In addition,it is undisputed that after Bryantrealized that she had stabbed Robert, she immediately attempted to summon medical assistance, and that she washysterical and expressed extreme remorse immediately after the stabbing. A reasonable jury also could have found credible the statements that Bryant madein the immediate aftermath of the stabbing, such as, “[T]his wasn't supposed to happen," and, "I didn't mean to." Further, Bryant told Lieutenant Evans during herinitial police interview in the hours after the stabbing that she "never really wanted to stab [Robert] or anything," and that the only thing she wanted to do was "to scare [Robert] ...." Finally, the jury could have believed Bryant's testimony that she never intended to kill Robert. In light of this evidence, we conclude that a reasonable jury could have found that Bryant did not harbor implied malice at the time ofthe stabbing, because she did not subjectively appreciate that her conduct endangered Robert's life. | Wereject all of the People's arguments to the contrary. To begin with, wereject the People's contention,raised in their supplementalbrief, that “[Bryant's] testimony defied any possibility that she acted without implied malice when she killed [Robert]." Weagree with the People that Bryant's testimony established that she knew that knives are sharp,20 andthat she "thrust the knife" at Robert as he lunged toward her. Further, 20 The People are also correct that Bryant "acknowledged she had a history with cutting herself and was aware. that knives were dangerous objects." However, Bryant's history of makingincisions on herarms has minimal, if any, relevancein proving that she subjectively appreciated that her-act ofthrusting a knife at Robert as he lunged toward her endangered Robert'slife. 27 we for the reasons more fully stated in part III.E., ante, we agree with the People that Bryant's testimony demonstrates that she knew thather act of thrusting a knife toward Robert would probably and directly result in injury to Robert. Thus, we agree with the People's contention,raised in their respondent's brief, that "[Bryant's] testimony that she intentionally thrust[] the knife at [Robert] . . . forecloses a theory of misdemeanor manslaughter," since that testimony establishes that she committed at least a felony assault with a deadly weapon. However, Bryantdid nottestify either that she intended to stab Robert or that she knew that heract of thrusting the knife toward Robert would ve endangerhislife. Further, Bryant's testimony concerning heractions in the immediate wakeof the stabbing—i-e. that she did not tealize that she had stabbed Robert until she saw him bleeding, and that she immediately sought medicalassistance—suggested an accidental killing. A jury might also have reasonably found havethat in light of the rapidity with which events unfolded during the struggle, Bryant had not anticipated that Robert would lunge at her just as she thrust the knife toward him. Thus, we cannot _ conclude that Bryant's testimony demonstrates, as a matter oflaw, that Bryant subjectively appreciated that her conduct endangered Robert's life. | Nor are we persuaded by the People's contention that Bryant's acknowledgment | that shethreatened to kill Robert while she was holding her cutting knife during their initial struggle in the bedroom conclusively established implied malice. Bryantalso testified that she madethis threat to “scare [Robert] so he wouldlet [{her] leave," andthat she did not actually. intend to kill him. In addition, after makingthis threat, Bryant used 28 the knife that she washolding at that time to cut herself, not to attack Robert.21 Further, the statements that Bryant madeduring herinitial police interview were consistent with her claim that she never intended to kill Robert, notwithstanding herearlier threat. In particular, Bryant acknowledged to Lieutenant Evansthat she had threatened tokill Robert in the past but that she had never intended to carry out such threats. Thus, while Bryant's earlier threatis certainly relevant to a determination as to whether she acted with implied malice in stabbingRobert, the threat does not conclusively establish that she — acted with conscious disregard for Robert's life. (See People v. Manriquez (2005) 37 hen Cal.4th 547, 585 (Manriquez) {"In deciding whether there is substantial evidence of a | lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury"}.) Finally, wereject the People's contention that a finding that Bryant did not appreciate that her conduct endangered Robert's life cannot be reconciled with the fact that Bryant “grabbed the knife after hitting [Robert] over the head with the telephone proved to be ineffective and she needed to escalate her modeofforce." Bryanttestified ‘that she grabbedtheknife in order to "scare [Robert] so he wouldlet [her] leave," and that, in grabbing in knife, she did not have anyintent to kill Robert. The jury could have - found Bryantcredible on these points. (See Manriquez, supra, 37 Cal.4th at p. 585.) 21 Asnoted in part IIL.A.4, ante, Bryant stabbed Robert with a different knife, one that she told police she picked up from the kitchen table just prior to the stabbing. 29 Accordingly, we concludethat the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter, based on the theory articulated by the court in Garcia.22 G. The trial court'sfailure to instruct thejury on the Garcia theory ofvoluntary manslaughter requires reversal 1. The proper standard ofprejudice In People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman), the Supreme Courtheld, "The sua sponte dutyto instruct fully on all lesser included offenses suggested by the evidence arises from California law alone," and thusa trial court's error in fulfilling this duty "must . . . be evaluated underthe generally applicable California test forharmless error... set forth in [People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)]." (Breverman, supra, at p. 176.) Under Watson,reversal is not warranted unless"it appears ‘reasonably probable’ the defendant would have achieved a more favorable outcome had the error not occurred. (Watson, supra, ... at p. 836.)" (Breverman, supra, at p. 178; e.g., Peoplev. Moye (2009) 47 Cal.4th 537, 555 [citing Breverman andapplying Watson in determining whethertrial court's assumederrorin failing to instruct on a heatofpassion theory of voluntary manslaughter was 22 The Garcia theory of voluntary manslaughteris not described in any CALCRIM jury instruction,andthe case is not referred to in the benchnotesof any instructions. In light ofits importance in clarifying a distinct theory of voluntary manslaughter, we urge the Judicial Counsel of California Advisory Committee on Criminal Jury Instructions to consider including an instruction based on Garcia in its‘set of standard criminal jury instructions. 30 prejudicial].)23 "The Supreme Court has emphasized ‘that a "probability" in this context does not mean morelikely than not, but merely a reasonable chance, more than an abstract possibility. (Citations.]' [Citation.]" (People v. Soojian (2010) 190 Cal.App.4th "491, 519.) 2. There is a reasonable probability that Bryant would have received a more Javorable result ifthe trial court had instructed theJury on the Garcia theory ofvoluntary manslaughter Weconclude that there is a reasonable possibility that Bryant would have received a more favorable resultif the trial court had instructed the jury on the Garcia theory of ve 23 Wereject Bryant's contention that we should apply the standard ofprejudiceset forth in Chapmanv. California (1967) 386 U.S. 18, whichis utilized in reviewing federal constitutional errors, under the theory expressedby Justice Kennard in herdissent in Moye, supra, 47 Cal.4th at page 563 (dis. opn. of Kennard;J.). In her dissent, Justice Kennardstated, "[TJhetrial court's failure to instruct on the heat of passion theory of voluntary manslaughter was federal constitutional error ‘because thetrial court . . . inadequately instructed the jury on the elements of murderbyfailing to explain that the elementofmalice is not present when the defendantkills in the heat ofpassion." (Jd. at p. 564; see also Breverman, supra, 19 Cal.4th at p. 194 (dis. opn. of Kennard, J.) [noting that jury instructions that erroneously describe an elementofan offense are subjectto the . Chapmanstandard ofprejudice].) Justice Kennard reasoned, " 'Given the mannerin whichCalifornia has structured the relationship between murder and voluntary manslaughter, the complete definition of malice is the intent to kill or the intent to doa dangerous act with conscious disregard ofits danger plus the absence ofboth heat of passion and unreasonable self-defense.' [Citation.]"” (Moye, supra, at pp. 563-564 (dis. opn. of Kennard, J.).) . Even assuming that a majority of the Supreme Court were to adopt Justice Kennard's view,it has no applicationto a trial court's failure to instruct the jury that an — unintentional killing without malice committed during the courseofan inherently dangerous assaultive felony constitutes voluntary manslaughter under Garcia. Unlike . acts committed in a heat of passion or unreasonableself-defense, which "negate malice" (Manriquez, supra, 37 Cal.4th at p. 583), a Garcia theoryof voluntary manslaughter appliesindependently of, and in the absence of, malice. Thefailure to instruct on the Garcia theory ofvoluntary manslaughterthus does not constitute an erroneous description ofthe malice element of murder. Therefore, pursuant to Breverman, supra, 19 Cal.4th 142, the Watson standard ofprejudice applies. , 31 voluntary manslaughter, for the following reasons. First, as discussed in part IF., ante, ‘the evidence of the physical acts that Bryant undertook on the night of the stabbing does not establish, as a matter of law, that she acted with implied malice. This is not, for example, a case in whichthe victims “were hit by multiple gunshots fired at close range from three different firearms." (Chun, supra, 45 Cal.4th at p. 1205 ["No juror could have found that defendantparticipated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous tolife and did so knowingofthe danger and with conscious disregard for life—whichis a valid theory of malice". Rather, in this case, Robert died from a single stab wound incurred during a physicalstruggle. Further, the physical evidence from the crime scene generally corroborated Bryant's testimonyas to the nature of the struggle. In addition, her testimonywas largely consistent with the statements that she madeto the police immediately following the stabbing, and was ambiguous with respect to whether she harbored implied malice at the time of the stabbing. In particular, as noted in part III.F., ante, Bryantnever said that she intended to stab Robert or thatshe knew that heract of thrusting the knife toward Robert as he lungedat her wouldendanger his life. | In addition, the other evidence of Bryant's mentalstate in committing the stabbing was far from conclusive. Importantly, the jury could have reasonably considered the fact that Bryant immediately sought medical attention for Robert and that she expressed both extreme remorsefor the consequences of her actions, and a concern for Robert's well- | being in the minutes andhours following the stabbing—evidencethatis inconsistent with 32 Bryant having harbored implied malice at the timeofthe stabbing. (See,e.g., Peoplev. Burden (1977) 72 Cal.App.3d 603, 620-621 ["A defendant's lack of concern as to whetherthe victim lived or died, expressed or implied, has been found to be substantial evidence of an ‘abandoned and matignant heart' by the appellate courts ofthis state"); People v. Ogg (1958)159 Cal.App.2d.38, 51 [Defendant'sfailure to seek the assistance of his friends or to obtain medical aid even though he knew that his wife was seriously injured indicates a heartless attitude and callous indifference toward her"].) Inlight of this evidence, a jury might well have concluded that Bryantfailed to appreciate the severity of the consequences ofheract in thrusting a knife toward Robert as her lunged at her. Accordingly, we reject the People's contention that “[Robert’s] mannerofdeath and [Bryant's] mental state was not such that a jury could have reasonably found [Bryant] acted without implied malice."24 Wereject all of the other arguments that the People offer in support of their contention that any instructional error was harmless. The People note that Bryant and Robert had a “history of violence," and contendthat Robert's death was "a snapshotof appellant's volatility.". However, the People do not explain how evidence presented at trial concerning the couple's abusive relationship establishes that the trial court's instructional error was harmless, and we see no basis upon whichto draw such a 24 Thejury acquitted Bryantoffirst degree murder, and the evidence ofthe distinct theories ofvoluntary manslaughter as to which thetrial court did instructthe jury— imperfect self-defense and heat ofpassion—was relatively weak. Indeed, the Peopledo not contendthatthejury's implied finding that Bryant did not act in either imperfect self- defenseor the heatofpassionis relevant in determining whether the trial court's failure to instruct on the distinct Garcia theory of voluntary manslaughter wasprejudicial. 33 conclusion.25 Nor are we persuaded that this court may affirm the judgment based on the “relatively short [jury] deliberation[s]" and the fact that the jury reached a verdict 45 minutes after the court reporter completed a read back of Bryant's testimony.26 To do so would amountto little more than speculation as to what occurred during those deliberations. | In most cases in whichthe jury finds that the defendantkilled the victim in the course of committing a felony that is inherently dangerous to human life, the jury will likely also concludethat the defendant harbored express or implied malice, and thus, that we . the defendant is guilty of second degree murder. However, there are cases, suchasthis, in whichit is not clear from the circumstances of the offense that in committing an inherently dangerousfelony, the defendant acted in consciousdisregard oflife. In such a case, the defendantis entitled to a jury instruction based on the Garcia theory of ’ voluntary manslaughter.27 25 As the People acknowledge intheir supplementalbrief, there was considerable evidence presented attrial that the Robert and Bryant were "mutually abusive."(Italics added.) 26 Thejury deliberated for approximately four hours over a two-dayperiod. 27 In this case,in light of the merger doctrine, Bryant may not be convicted of second degree felony-murder based upon an unintentionalkilling committed without malice during the course ofan inherently dangerous felony. (Chun, supra, 45 Cal.4th at p. 1 178; see fn. 4, ante.) However, the possibility of an unwarranted second degree murder conviction exists in this case because thefailure to instruct on a lesser included offense that is supported by theevidence presents "the jury with an ‘unwarrantedall-or-nothing- choice... .'" (Breverman, supra, 19 Cal.4th at p. t55.) 34 IV. DISPOSITION Bryant's conviction for second degree murderis reversed. If the People do not bring Bryantto retrial on a charge of second degree murderwithin the time limit set forth in section 1382 (i.e., 60 daysafter the filing of the remittitur unless good cause is shown for a different period or Bryant waives the 60-day requirement), the trial court shall proceedasifthe remittitur constituted a modification of the judgmentto reflect a conviction for voluntary manslaughter, and shall resentence Bryant accordingly. faim AARON,J. WE CONCUR: 7 NARES, Acting P.J. Weg : neri 35 aaa DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Bryant No.: D057570 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same dayin the ordinary course of business. On September 8, 2011, I served-the attached PETITION FOR REVIEWbyplacinga true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186- 5266, addressed as follows: Anthony J. Dain, Attorney at Law Clerk of the Court 330 J Street, #609 Criminal Division San Diego, CA 92101 Riverside County Superior Court Attorney for Appellant 4100 Main St. (2 copies) Riverside, CA 92501-3626 The Honorable Paul E. Zellerbach Stephen M.Kelly, Court Administrator District Attorney Court of Appeal of the State of California Riverside County District Attorney's Office Fourth Appellate District, Division One 3960 Orange Street 750 B Street, Suite 300 Riverside, CA 92501 San Diego, CA 92101 I declare under penalty ofperjury under the laws of the State of California the foregoingis true and correct and thatthis declaration was executed on September8, 2011, at San Diego, California. S. McBrearty oa Gn Brearly> Declarant Signature $D2010701060 70498260.doc