Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA303883, Sam Ohta, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Delante Banks was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The trial court sentenced appellant to 25 years to life in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to instruct the jury with voluntary manslaughter instructions and further contending that the prosecutor committed misconduct in arguing about intoxication. We affirm the judgment of conviction.
Facts
On June 4, 2006, Isaac Craigen had a party in the garage of his house on South Norton Avenue in Los Angeles. About 10 to 15 people came to the party. Among the party-goers were Kenny Callahan, the victim in this case. Callahan was Craigen's cousin. Appellant also attended the party. Craigen described appellant as somewhat agitated when he arrived. Craigen believed that appellant was intoxicated.
According to Craigen, appellant continued to drink during the party. At one point, he asked a woman for a cigarette, slapped her face, then turned to another woman and asked for a cigarette and five dollars. Appellant was yelling and appeared agitated. Others may also have been yelling.
Barbara Craigen, Isaac Craigen's wife, heard the noise, came to the garage and asked everyone to leave. Everyone but Isaac Craigen left the garage.
Ten to fifteen minutes later, Barbara Craigen looked out the window and saw a lot of people in the street. Callahan was lying in the street. She saw appellant picking up Callahan's legs and letting them drop. Appellant took Callahan's shoes, socks and pants off. Appellant kicked Callahan in the right side of his body, then walked across his chest and then kicked his left side. Appellant repeated these actions several times.
Barbara Craigen went to the garage and got her husband. The couple went to the street. Isaac Craigen saw appellant walk across Callahan's chest, then kick him in the side. Appellant then walked back across Callahan's chest and walked off down the street. Craigen could not understand what appellant said during this time, but he sounded angry. Barbara Craigen called 911.
Callahan died as a result of appellant's blows.
"A lot" of people watched the fight between appellant and Callahan, but police were unable to find any witnesses to the fight apart from the Craigens and William King. King testified at trial that he only saw an undifferentiated scuffle as he was returning from a liquor store.
Detective William Gordon testified at trial that King was afraid to testify and that King had given a more detailed description of the assault during his interview with the detective. For example, King told police that someone yelled at appellant to stop assaulting Callahan lest he kill him. Detective Gordon acknowledged that King was not clear in the interview about what he had personally seen and what he had heard about from others.
Appellant was arrested at his home the morning after the killing. He had no visible injuries. There were two spots of Callahan's blood on shoes found in appellant's laundry room.
Discussion
1. Voluntary manslaughter
Appellant contends that the trial court had a sua sponte to instruct the jury on voluntary manslaughter and that the trial court's failure to do so violated his federal constitutional right to due process and trial by jury.
Appellant points out that at least one court has held that voluntary manslaughter can occur if a person kills unintentionally and without malice during the commission of an inherently dangerous felony. (People v. Garcia (2008) 162 Cal.App.4th 18.) He contends that the beating in this case was aggravated assault and that this is an inherently dangerous felony. He concludes that his situation is thus the same as the appellant in Garcia, and that he was entitled to voluntary manslaughter instructions under the reasoning of that case.
A trial court has a duty to instruct the jury on general principles of law applicable to the case, including instructing on lesser included offenses if the evidence raises a question as to whether the elements of the charged offense are present. (People v. Valdez (2004) 32 Cal.4th 73, 115.) We see no evidence to support a voluntary manslaughter instruction in this case.
In Garcia, the defendant hit the victim in the face with the butt of a shotgun, causing the victim to fall to the ground and hit his head. Death resulted. (People v. Garcia, supra, 162 Cal.App.4th at p. 24.) We strongly question whether there is evidence in this case to support a finding that appellant killed Callahan unintentionally and without malice. Here, appellant did not strike one unlucky blow against his victim as the defendant in Garcia did. Appellant repeatedly hit Callahan and continued his attack even after Callahan lay on the ground, lifeless or unconscious. Appellant contends that the effect of his blows, which caused internal bleeding, was compounded by Callahan's cirrhosis of the liver, which impaired Callahan's ability to produce the type of cells which cause blood clotting. Perhaps so. But considerable force is required to cause internal bleeding, and appellant applied that force repeatedly.
Assuming for the sake of argument that the trial court erred in failing to instruct the jury on voluntary manslaughter, we would find the error harmless under either a state or federal law standard of review.
The failure to instruct sua sponte on lesser included offenses is an error under state law and governed by the Watson standard of review. (People v. Blakeley (2000) 23 Cal.4th 82, 93.) We do not agree with appellant's contention that the failure to instruct violated his federal constitutional rights to due process and a trial by jury and so should be reviewed under the standard set forth in Chapman v. California (1967) 386 U.S. 18. Assuming for the sake of argument that Chapman did apply, we would find any error harmless under that standard of review.
The trial court instructed the jury on both first and second degree murder. The jury convicted appellant of first degree murder. Thus, the omission of the voluntary manslaughter instruction was harmless beyond a reasonable doubt. (People v. Lewis (2001) 25 Cal.4th 610, 646 [error in failing to instruct on a lesser included offense is harmless when the jury necessarily decides the factual question posed by the omitted instructions adversely to defendant under other properly given instructions]; see People v. Prettyman (1996) 14 Cal.4th 248, 276 [by convicting appellant of first degree murder rather than second degree murder, jury necessarily rejected the possibility of manslaughter and so omission of manslaughter instructions was harmless].)
2. Prosecutorial misconduct
Appellant contends that the prosecutor committed prejudicial misconduct by arguing that intoxication was only relevant to the issue of malice if appellant did not know what he was doing.
"In evaluating a claim of prejudicial misconduct based upon a prosecutor's comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner." (People v. Cunningham (2001) 25 Cal.4th 926, 1019.) We consider the comments in the context of the entire argument. (People v. Dennis (1998) 17 Cal.4th 468, 522.) We see no reasonable likelihood that the jury understood the prosecutor's argument remarks in the manner suggested by appellant.
The prosecutor began his discussion of intoxication by telling the jury, correctly, that "voluntary intoxication is a defense to express malice if and only if you believe that he was so intoxicated that he could not have formed express malice." The prosecutor pointed out that the jury did not have to say "okay, he was drinking, so I guess he can't be guilty of first degree murder; so, no, the evidence tells you to reject that defense." The prosecutor then argued in detail that the evidence showed that appellant was not really intoxicated. It is to portions of this argument that appellant objects.
The prosecutor argued that appellant did not manifest any visible signs of intoxication and in effect argued that Craigen's opinion that appellant was intoxicated should be rejected. The prosecutor gave several examples of visible signs of intoxication, including but not limited to passing out and not knowing what was going on. Nothing the prosecutor said implied that voluntary intoxication could only be a defense if appellant passed out or did not know what he was doing.
The prosecutor asked: "And you know from the evidence was he so voluntarily intoxicated? Was he so intoxicated that he didn't know what he was doing? Well, we know that drunk people do things --" Appellant objected and was overruled. The prosecutor continued: "We know in real life when people are drunk or maybe they're too drunk or not too drunk. We can make that kind of determination. Well, what about the evidence here? We have the defendant going to a party, 15 minutes earlier Isaac Craigen had said, yeah, he wasn't stumbling. He was able to talk. He was able to speak. He wasn't slurring his speech.... He's not stumbling. He's not so intoxicated that he can't know what he's doing." The prosecutor continued "I asked Isaac Craigen, was [appellant] falling when he was pulling off his pants? I mean, someone who's so intoxicated, so drunk that they can't form express malice or a specific intent, that's the person who's going to be passed out. That's the person who is stumbling around, who's slurring his speech, you know, and I don't know what's going on. That wasn't the [appellant]."
The prosecutor pointed out that appellant was able to take the socks, shoes and pants off an unconscious 200 pound man, which showed that appellant was "not someone who is so intoxicated that they don't know what they're doing. And again, ten o'clock in the morning, about ten hours later, when Detective Gordon arrests him, he has no visible injuries. He hadn't been falling, scraping himself up. He didn't complain of any pain. So the voluntary intoxication defense I ask you to reject it because, if you evaluate the evidence as it is, it should be rejected."
Since nothing the prosecutor said implied that voluntary intoxication could only be a defense if appellant passed out or did not know what he was doing, no misconduct occurred.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.