Opinion
A149145
06-01-2018
THE PEOPLE, Plaintiff and Respondent, v. MARC FURLAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC077753A)
Marc Furlan appeals his jury conviction for second degree murder (Pen. Code, §§ 187, 189). Furlan argues the trial court improperly failed to instruct the jury he could be convicted of involuntary manslaughter on a theory that the killing was perpetrated without malice while committing assault with a deadly weapon (§ 245, subd. (a)(1)). Furlan also contends he is entitled to a limited remand, pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin), to make a record in anticipation of an eventual youth offender parole hearing. The People concede he is entitled to such a limited remand. We affirm the judgment and order a limited remand.
Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2013, a San Mateo County grand jury returned an indictment charging Furlan with the murder of Keith Coffey (§ 187, subd. (a)). The indictment also alleged Furlan used a knife and hammer to commit the offense, both deadly weapons within the meaning of section 12022, subdivision (b).
Prosecution Case
On October 16, 2012, at around 10:30 p.m., Maria Quirarte and her friend, Keith Coffey, went to the Cheers bar in Pacifica. At some point before 2:00 a.m. the next day, Furlan began talking to Quirarte and Coffey when they stepped outside to smoke a cigarette. Not long thereafter, Quirarte went to a nearby Denny's restaurant. Coffey and Furlan returned to the bar, where Furlan was observed ordering two "Long Island" drinks and speaking in a "[v]ery flat" or "monotone" voice. Furlan was described as appearing "zombie-like," due to his vacant stare. Sometime between 2:00 and 3:00 a.m., Quirarte saw Coffey standing outside a nearby Safeway store and spoke to him on her cell phone. Coffey indicated he was waiting for "the guy . . . that was standing outside of the bar with us." Quirarte then saw someone, who looked like Furlan, leave the Safeway.
In October 2012, Patrick Garcia rented a room in the same Pacifica house where Furlan lived with his father and aunt (Alicia). Around 4:00 a.m. on October 17, Garcia was awakened by loud knocking noises coming from inside the house. When the noise stopped, Garcia walked to the kitchen area where he saw a body on the floor and heard labored breathing. Garcia retreated to his bedroom and texted Alicia.
Alicia testified that, on October 16, 2012, she and Furlan had an argument about his use of her phone. They had no further contact that day. Shortly after 4:00 a.m. on October 17, she woke up when someone banged on her locked bedroom door and tried to open it. At 4:14 a.m., she received a text from Garcia saying a body was on the floor near the kitchen. Garcia also described Furlan "going back and forth inside and outside the house." Alicia and Garcia continued to text about the situation until 4:47 a.m., when they decided to flee through their respective bedroom windows. At the front of the house they saw a body near the garage door. They called police after leaving the premises.
At around 5:15 a.m., Pacifica police officers responded to the Furlan residence. Officers immediately discovered Coffey's deceased body in the driveway, partially obscured underneath a parked van. Next to Coffey's body, was a large black duffel bag, the contents of Coffey's wallet, and a carpet. A trail of blood led from Coffey's body to the house's front door. Officers found Furlan on the floor of the garage and detained him without incident. Furlan smelled of alcohol and slurred his speech, but he walked without difficulty. Coffey's blood was found on Furlan's face, shoes, and hands.
Inside the house, officers discovered bloody shoeprints. Blood was found in several areas of the dining room, including on the walls, ceiling, table, door, and a chair, as well as in cracks between hardwood floor panels. Teeth, pieces of bone, and a bloody baseball hat were found on the dining room floor. On the dining room table, officers found a hammer with Coffey's blood and hair on it, a two-thirds empty bottle of Captain Morgan rum, a broken shot glass, a bloody roll of paper towels, and a spray bottle. A bloody mop was found near the door between the dining room and garage. A bottle of Clonazepam, bearing a prescription in Furlan's name, was found in an area between the kitchen and dining room.
Inside the garage, officers recovered a four-inch serrated kitchen knife with Coffey's blood on the blade. Furlan's DNA was found on the handle of the knife. Bloody towels were recovered, as well as a bloody comforter in the washing machine.
Forensic pathologist, Peter Benson, M.D., conducted Coffey's autopsy. Benson identified approximately 98 "blunt trauma" and "sharp force" injuries to Coffey's head and neck that collectively were fatal and consistent with infliction by the recovered hammer and knife. Several of Coffey's bones were broken, including his nose, skull, and jaw. His face was "complete[ly] distort[ed]," and he was missing teeth. A piece of Coffey's broken skull had been driven into his brain. Coffey's brain matter was found on his shoulder. Sixteen stab wounds in Coffey's back varied in depth from a half-inch to four-inches; four penetrated Coffey's lungs; and one penetrated his liver. Based on their pattern, Dr. Benson opined Coffey was unconscious when the stab wounds were inflicted.
Benson determined Coffey died within a few minutes of receiving the numerous and severe head injuries. Scrape marks on Coffey's chest and abdomen were consistent with his body having been dragged. It was not reasonably possible that Coffey crawled 10 or 15 feet after suffering his head injuries. Coffey's hands had no defensive wounds, suggesting he was "disabled to some degree" before the attack. Coffey's blood alcohol level at the time of his death was 0.41—five times above the legal limit for driving in California.
Defense Case
Furlan testified he and Coffey were childhood friends. The morning of October 16, 2012, Furlan took his prescription pain medication, Subutex. That afternoon, he had "a really bad anxiety attack" and took four Clonazepam pills, which was more than his prescribed dosage. Furlan next recalled eating a sandwich, watching Netflix, and using his computer. He had no further recollection of events on October 16 and 17.
Furlan did not remember arguing with Alicia or if he took more Clonazepam. Nor did he remember going to Cheers, drinking, seeing Coffey, or anything that happened at his home that evening. Furlan described only "flash" memories of someone handing him drinks over a bar and grabbing a bottle of alcohol from a store. The next thing he recalled was someone showing him Coffey's identification; he thought the person who showed him the identification was "Clark Kent" or "Kent Clark." Furlan recalled waking up in a jail cell but not how he arrived there.
On cross-examination, Furlan said he did not know if he killed Coffey. Furlan stated he had a poor memory in general. He took medications for back pain off and on for the past 10 years, including methadone, Vicodin, and oxycodone. He took Clonazepam for panic attacks and anxiety, but he also took other antianxiety medications over the years. In addition, Furlan admitted prior use of cocaine, methamphetamine, heroin, ecstasy, and ketamine. He admitted to abusing alcohol when he was "younger," but stated at the time of Coffey's death he only drank occasionally and not to excess.
The defense played a videorecording of an October 17, 2012 police interview with Furlan. During the interview, Furlan said he only took half of a single, two-milligram pill of Clonazepam and initially said he had only one drink. Furlan repeatedly stated he had no memory of events occurring prior to his arrest, but at other times he provided details of the prior evening. For example, he recalled Alicia had been mad at him and would not let him use her cell phone. He also said he went to Cheers, where he drank one gin and tonic, saw some "[a]cquaintances," talked to "the old Pacifica kids from when [he] was young," and "met somebody who [he] hadn't seen in a long time." At one point, he invited people to his house when he left Cheers, "some friends came over," he got beat up, and the police later arrived. Furlan also remembered drinking "Captain Morgan" rum at his house. Furlan said one or two of "the guys" who came to the house had made fun of him and "came after him." Furlan thought he got "beat up" and someone hit him in the throat. He described it as the "fight of [his] life" and complained of a sore throat during the police interview.
Furlan had two small cuts, on his right hand and forearm, and minor scrapes on his knee, but no other visible injuries.
Throughout most of the police interview, Furlan claimed to have no memory of who had been at his house. However, when he was shown Coffey's photograph towards the end of the interview, Furlan remembered seeing Coffey at Cheers and that he and Coffey drank shots at Furlan's house.
At 8:44 a.m. on October 17, 2012, Furlan's blood alcohol level was measured at the police station at 0.07 percent. Two defense expert witnesses in toxicology, criminalist Scott Reinhardt and Alan Donelson, Ph.D., testified that a retrograde analysis indicated that, at 3:00 a.m., Furlan's blood alcohol level would have been approximately 0.18. At 4:00 a.m., it would have been 0.16, and at 5:00 a.m. it would have been 0.14. These levels were based on an average person's alcohol burn-off rate. If Furlan were an alcoholic or frequently consumed large amounts of alcohol, his alcohol burn-off rate would be higher and the earlier blood alcohol levels would have been higher. Additionally, Furlan's blood contained 0.39 milligrams per liter of Clonazepam, an extremely high level of this long-acting benzodiazepine. Clonazepam can produce intoxicating effects similar to alcohol, as well as excitability and aggression. At high doses, it can interfere with cognitive functioning and memory formation. Furthermore, a synergistic effect can be created when Clonazepam is combined with alcohol.
A 0.1 milligram per liter level of Clonazepam, or approximately 25 percent of what Furlan had in his system, is a potentially intoxicating level. The blood sample obtained at the time of Furlan's arrest was not tested until November 5, 2012. Clonazepam in blood tends to break down over time when stored at room temperature, and as a result, the level of Clonazepam in Furlan's system may have been higher than measured.
George Bach-y-Rita, M.D., a psychiatrist, met with Furlan on two occasions and reviewed his medical history. He believed Furlan had a psychotic disorder of the "paranoid schizophrenia type." Bach-y-Rita further opined that Furlan suffered from a psychotic disorder at the time Coffey was killed.
People's Rebuttal Case
Alex Stalcup, M.D., an addiction treatment expert, testified that somebody with a high drug or alcohol tolerance—such as a person with a history of drug use—could have a 0.20 to 0.30 level of Clonazepam in his system and still function relatively normally. Stalcup further opined that a person with a high tolerance to alcohol could have a 0.20 blood alcohol level or higher and, despite the legal driving limit in California of 0.08, still manage to operate a vehicle safely and appear objectively sober. Stalcup disagreed that a "synergistic effect" is created when alcohol and Clonazepam are combined. In response to a hypothetical question about a person who tested at a 0.39 milligram per liter level of Clonazepam at 9:00 a.m., Stalcup testified the drug could possibly have been taken as recently as 4:00 or 5:00 a.m. the same morning.
On cross-examination, Stalcup agreed that a 0.39 milligrams per liter level of Clonazepam is a "[v]ery high level." He could not recall ever treating anyone at that level.
Megan Lisska, M.D., the lead psychiatrist at the San Mateo County jail, reviewed Furlan's jail medical records and examined Furlan on two occasions. She opined his behavior in jail was inconsistent with paranoid schizophrenia. Ronald Roberts, Ph.D., a forensic psychologist and neuropsychologist, examined Furlan's medical records and personally evaluated Furlan in April 2016. Roberts opined that Furlan was "malingering." Roberts did not believe Furlan suffered from psychosis on October 17, 2012.
Instructions and Closing Argument
The jury received instructions, among others, on premeditated first degree murder, second degree murder, and involuntary manslaughter. Specifically, Furlan requested and received an instruction that if, while unconscious as the result of voluntary intoxication, he killed without malice or intent to kill, the crime was not murder, but involuntary manslaughter. The jury was also instructed it could consider the effect of either mental disease or voluntary intoxication, if any, when determining whether Furlan formed the requisite intent for any crime. Also provided was a separate involuntary manslaughter instruction, modeled on CALCRIM No. 580: "When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter." However, the instruction, in illustrating one type of involuntary manslaughter, failed to identify the specific "crime" Furlan potentially committed with criminal negligence.
CALCRIM No. 625 limited the jury's consideration of voluntary intoxication, providing in part: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, the defendant acted with deliberation and premeditation, or the defendant was unconscious when he acted."
Verdict
After deliberating for one day, the jury found Furlan guilty of second degree murder, despite the prosecution's argument for first degree murder. The jury also found the deadly weapon allegations "true." The trial court sentenced Furlan to 15 years to life for the murder conviction and a consecutive one-year term for one of the deadly weapon enhancements. This timely appeal followed.
II. DISCUSSION
Furlan contends his second degree murder conviction should be reversed because the jury was improperly instructed on involuntary manslaughter. In the alternative, Furlan contends he is entitled to a limited remand to make a record for an eventual youth offender parole hearing. Furlan fails to show prejudicial instructional error, but he is entitled to a limited remand. A. Jury Instruction
Furlan argues one jury instruction regarding involuntary manslaughter, CALCRIM No. 580, was incomplete because it erroneously failed to specify the underlying predicate offense or its elements. Specifically, Furlan contends the trial court should have given further instructions based on the theory he committed assault with a deadly weapon with criminal negligence.
Using CALCRIM No. 580, the trial court instructed: "When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter. [¶] The defendant committed involuntary manslaughter if: [¶] 1. The defendant committed a crime; [¶] 2. The defendant committed the crime with criminal negligence; [¶] AND [¶] 3. The defendant's acts caused the death of another person. [¶] Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. [¶] . . . [¶] In order to prove murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life as explained in CALCRIM 520. If the People have not met either of these burdens, you must find the defendant not guilty of murder." (Italics added.)
The trial court did not employ certain bracketed language from the model jury instruction that provides, "[The People allege that the defendant committed the following crime[s]: __________ <insert misdemeanor[s]/infraction[s])/noninherently dangerous (felony/felonies)>. [¶] Instruction[s] __________ tell[s] you what the People must prove in order to prove that the defendant committed __________ <insert misdemeanor[s]/infraction[s])/ noninherently dangerous (felony/felonies)>.] [¶] . . . [¶] [The People allege that the defendant committed the following (crime[s]/ [and] lawful act[s] with criminal negligence): __________ <insert alleged predicate acts when multiple acts alleged>. You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these alleged acts and you all agree that the same act or acts were proved.]" (CALCRIM No. 580.) Nor did the trial court otherwise define the term "crime" or provide any instruction defining the elements of assault with a deadly weapon. Thus, the trial court instructed the jury on the elements of involuntary manslaughter based on the commission of a "crime," but failed to specify assault with a deadly weapon was such a crime. It also failed to define the elements of assault with a deadly weapon.
Furlan requested instruction on the lesser included offense of involuntary manslaughter. However, Furlan does not suggest he requested an instruction laying out the elements of assault with a deadly weapon. Thus, we consider only whether the trial court should have sua sponte specified the crime involved and instructed on its elements. In a murder prosecution, a trial court's duty to instruct sua sponte "includes the obligation to instruct on every supportable theory of the lesser included offense . . . , not merely the theory or theories which have the strongest evidentiary support, or on which the defendant has openly relied." (People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman); accord, People v. Lee (1999) 20 Cal.4th 47, 61.) "We review the trial court's failure to instruct on a lesser included offense de novo [citations] considering the evidence in the light most favorable to the defendant." (People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
To provide context for Moore's legal arguments, we first review the law of homicide, drawing attention to the distinctions between second degree murder and involuntary manslaughter.
1. Legal Background
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a); People v. Rios (2000) 23 Cal.4th 450, 460.) Malice may be express or implied. (§ 188.) Express malice is shown by the defendant's intent to unlawfully kill. (People v. Perez (2010) 50 Cal.4th 222, 233, fn. 7.) " 'Malice is implied . . . when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.' " (People v. Carlson (2011) 200 Cal.App.4th 695, 703.) Implied malice has " 'both a physical and a mental component. The physical component is satisfied by the performance of "an act, the natural consequences of which are dangerous to life." [Citation.] The mental component is the requirement that the defendant "knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life." ' " (People v. Chun (2009) 45 Cal.4th 1172, 1181, italics added.)
First degree murder is a killing that is premeditated and deliberate, that occurs during the commission of certain enumerated felonies (statutory felony murder), or that occurs under other specified circumstances not relevant here, where malice is not negated by heat of passion or imperfect self-defense. (§ 189; People v. Rios, supra, 23 Cal.4th at p. 465.) Second degree murder is any other killing committed with an intent to kill or conscious disregard for danger to human life "but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder." (People v. Knoller (2007) 41 Cal.4th 139, 151; accord, § 189.)
The second degree felony-murder rule cannot be applied to assaultive felonies (i.e., felonies involving a threat of immediate violent injury) that result in death—those felonies are considered integral to the homicide and "merge" with it. (People v. Ireland (1969) 70 Cal.2d 522, 539; People v. Chun, supra, 45 Cal.4th at p. 1200 ["[w]hen the underlying felony is assaultive in nature . . . the felony merges with the homicide and cannot be the basis of a felony-murder instruction"].)
Involuntary manslaughter is a lesser included offense of murder. (People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Lee, supra, 20 Cal.4th at pp. 60-61.) Involuntary manslaughter is defined by statute as "the unlawful killing of a human being without malice . . . [¶] . . . [¶] . . . in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection," excepting acts committed in the driving of a vehicle. (§ 192, subd. (b).) Other theories of involuntary manslaughter not directly supported by the statute have been recognized. A killing without malice in the commission of a felony not enumerated in section 189 and not inherently dangerous to human life also may be involuntary manslaughter. (People v. Burroughs (1984) 35 Cal.3d 824, 835, overruled on other grounds as stated in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Butler (2010) 187 Cal.App.4th 998, 1007.) A killing while one is unconscious of one's acts due to voluntary intoxication is also involuntary manslaughter. (People v. Abilez (2007) 41 Cal.4th 472, 516.)
"To support a defense of 'diminished actuality,' a defendant presents evidence of voluntary intoxication or mental condition to show he 'actually' lacked the mental states required for the crime." (People v. Clark (2011) 52 Cal.4th 856, 880, fn.3.) "[T]he jury may generally consider evidence of voluntary intoxication or mental condition in deciding whether defendant actually had the required mental states for the crime." (People v. Steele (2002) 27 Cal.4th 1230, 1253.) "A verdict of involuntary manslaughter is warranted where the defendant demonstrates 'that because of his mental illness . . . he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought).' " (People v. Rogers (2006) 39 Cal.4th 826, 884.) Although " '[u]nconsciousness is ordinarily a complete defense to a charge of criminal homicide . . . [i]f the state of unconsciousness results from intoxication voluntarily induced, . . . it is not a complete defense.' " (People v. Ochoa (1998) 19 Cal.4th 353, 423; § 29.4.) "When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter." (Ochoa, at p. 423.)
Evidence of a defendant's voluntary intoxication that does not render him or her unconscious is admissible "solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b).) However, voluntary intoxication cannot negate implied malice. (People v. Soto (2018) 4 Cal.5th 968, 977, 980; People v. Turk (2008) 164 Cal.App.4th 1361, 1374-1377.)
2. Analysis
Assault with a deadly weapon was the underlying "crime" not identified in the involuntary manslaughter instruction. Assault with a deadly weapon is an inherently dangerous felony. (See People v. Bryant (2013) 56 Cal.4th 959, 966; People v. Ireland, supra, 70 Cal.2d at p. 539.) The People concede the jury could have found Furlan killed Coffey while committing assault with a deadly weapon, but entertained a reasonable doubt regarding whether the killing was committed with malice. (See People v. Brothers, supra, 236 Cal.App.4th at p. 35 ["when the evidence presents a material issue as to whether a killing was committed with malice, the court has a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense, even when the killing occurs during the commission of an aggravated assault"].)
The People also concede the trial court had a sua sponte duty to specify the underlying felony and to instruct on the elements of such offense. (See People v. McManis (1972) 26 Cal.App.3d 608, 614 ["instruction defining misdemeanor within the context of a misdemeanor-manslaughter instruction must be given sua sponte" (italics omitted)]; Judicial Council of Cal., Crim. Jury Instns. (2018) Bench Notes to CALCRIM No. 580, p. 328 [court has "sua sponte duty to specify the predicate misdemeanor, infraction or noninherently dangerous felony alleged and to instruct on the elements of the predicate offense(s)"], citing, inter alia, People v. Burroughs, supra, 35 Cal.3d at p. 835.) We need not decide whether People v. Brothers, supra, 236 Cal.App.4th 24, was correctly decided. Even if the trial court erred in failing to sua sponte identify and define the elements of the underlying assault offense, any error was harmless.
The parties disagree about the applicable standard of review. The People contend Furlan cannot show he was prejudiced because, generally, prejudice from a failure to sua sponte instruct on a lesser included offense is determined by the People v. Watson (1956) 46 Cal.2d 818 (Watson) standard: reversal is warranted only if it appears reasonably probable the defendant would have achieved a more favorable result had the error not occurred. (Breverman, supra, 19 Cal.4th at p. 149; Watson, at p. 836.) Furlan, on the other hand, contends the instructional error violated his federal constitutional rights, requiring prejudice to be determined under the Chapman v. California (1967) 386 U.S. 18 (Chapman) standard, which requires reversal unless we conclude beyond a reasonable doubt the verdict would have been the same without the error. (Chapman, at p. 24.)
Failure to instruct on a lesser included offense supported by the evidence in a capital case is constitutional error. (Beck v. Alabama (1980) 447 U.S. 625, 638.) However, "the United States Supreme Court has expressly refrained from recognizing a federal constitutional right to instructions on lesser included offenses in noncapital cases." (Breverman, supra, 19 Cal.4th at p. 165.) In Breverman, our Supreme Court rejected the notion criminal defendants have "a federal constitutional right to instructions on lesser included offenses in noncapital cases" (Breverman, at p. 165), and applied the Watson standard to assess the trial court's error in failing to give, sua sponte, a heat-of-passion instruction in a noncapital case (id. at pp. 148-149).
Furlan suggests the Breverman holding has been implicitly abrogated. He relies on People v. Thomas (2013) 218 Cal.App.4th 630 and People v. Millbrook (2014) 222 Cal.App.4th 1122. In Thomas, Division Three of this appellate district held a trial court's failure to give a requested heat-of-passion instruction in a noncapital case amounted to a federal constitutional error subject to review under Chapman. (Thomas, at pp. 642-644, 646.) However, Thomas began by observing that "[a] mistaken instruction on malice as an element of murder is constitutional error that is reviewed for its prejudicial effect under the rule established in [Chapman]. (People v. Swain (1996) 12 Cal.4th 593, 607; accord, People v. Flood (1998) 18 Cal.4th 470, 502.)" (Thomas, at p. 641.) "Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." (Id. at p. 642.) Thus, when provocation is put at issue, the prosecution is required to prove the absence of provocation in order to prove malice. (Id. at p. 643.) Thomas concluded: "If provocation is properly presented in a murder case, then, proving the element of malice requires the People to prove the absence of provocation beyond a reasonable doubt. [Citation.] . . . Failure to instruct the jury on heat of passion to negate malice is federal constitutional error requiring analysis for prejudice under Chapman." (Thomas, at p. 644.)
Furlan contends we should reach the same conclusion in this case because the trial court's error "amounts to instructional error on the requisite elements for a murder conviction by failing to properly explain the circumstances under which the element of malice is not present and in which the offense is instead properly deemed manslaughter." Although that was the nature of the error in both People v. Thomas, supra, 218 Cal.App.4th 630, and People v. Millbrook, supra, 222 Cal.App.4th 1122, a similar error did not occur here.
Furlan also misplaces his reliance on Conde v. Henry (9th Cir. 1999) 198 F.3d 734. In Conde, the Ninth Circuit Court of Appeals found structural error because "the trial court improperly precluded [the defendant's] attorney from making closing argument explaining the defendant's theory of the case, it refused to instruct the jury on the defendant's theory, and, over the defendant's objection, it gave jury instructions that did not require that the jury find every element of the offense." (Id. at p. 741.)
Here, the trial court did not omit or misinstruct on an essential element of the offense of murder. The jury was repeatedly instructed that to convict Furlan of murder, the People must prove, beyond a reasonable doubt, he acted with malice aforethought. In CALCRIM No. 580 itself, the jury was instructed, "When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] . . . [¶] In order to prove murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life . . . . If the People have not met either of these burdens, you must find the defendant not guilty of murder."
The jury was also instructed pursuant to CALCRIM No. 626 on the voluntary intoxication/unconsciousness theory of involuntary manslaughter. That instruction provides, in relevant part: "The People have the burden of proving beyond a reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you must find the defendant not guilty of murder." The jury was also instructed in accordance with CALCRIM No. 3428: "You have heard evidence that the defendant may have suffered from a mental disease, defect, or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] With respect to the charged crime of First Degree Murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: premeditation, deliberation, and malice aforethought. If the People have not met this burden, you must find the defendant not guilty of First Degree Murder. [¶] With respect to the lesser crime of Second Degree Murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: malice aforethought. If the People have not met this burden, you must find the defendant not guilty of Second Degree Murder." Furlan has not shown the trial court omitted any instruction on malice or the theories under which it could be negated in this case.
The People set forth the correct standard. "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." (Breverman, supra, 19 Cal.4th at p. 165.) Accordingly, we apply the Watson standard and consider whether it is reasonably likely Furlan would have obtained a more favorable outcome in the absence of the instructional error.
3. Harmless Error
Under Watson, an error is prejudicial if, after an examination of the entire cause, including the evidence, the reviewing court concludes it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. (Watson, supra, 46 Cal.2d at pp. 836-837.) " ' "[A] 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." ' " (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.) "Appellate review under Watson, . . . focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (Breverman, supra, 19 Cal.4th at p. 177.)
In Furlan's view, there is a reasonable likelihood the jury would have convicted him of the less serious crime of involuntary manslaughter, or hung on murder, had further instruction on assault with a deadly weapon been provided. Recognizing his state of mind was the key issue, Furlan suggests "a properly instructed jury would have found [he] did not act with malice aforethought." We disagree.
As previously explained, the jury was fully instructed on the distinction between voluntary and involuntary manslaughter—the defendant's mental state. CALCRIM No. 580 instructed the jury: "When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter." The same instruction also informed the jury that Furlan committed involuntary manslaughter if: "1. [He] committed a crime; [¶] 2. [He] committed the crime with criminal negligence; AND [¶] 3. [His] acts caused the death of another person."
Although the predicate "crime" was not defined in CALCRIM No. 580, the only possible "crimes" to which the instruction could reasonably be understood to apply were Furlan's acts of striking Coffey with a hammer and stabbing him with a knife. The reason for requiring the unlawful act to be defined in an involuntary manslaughter instruction is because "[f]ailure to do so may allow the trier of fact to engage in unguided speculation as to what conduct is sufficient to constitute a misdemeanor . . . dangerous to human life." (People v. McManis, supra, 26 Cal.App.3d at p. 614 [misdemeanor-manslaughter rule].) The record does not suggest it is likely the jury engaged in such speculation here.
The prosecutor argued in closing that the "crime" referenced in the involuntary manslaughter instruction was "hitting [Coffey] with a hammer. He's stabbing him with a knife. That's the crime." The arguments of counsel, however, are no substitute for instructions by the court. (Taylor v. Kentucky (1978) 436 U.S. 478, 488-489.)
Contrary to Furlan's position, omission of the elements of assault with a deadly weapon did not leave the jurors with an all or nothing choice between an acquittal or convicting Furlan of murder. Quite simply, the trial court's error did not withdraw involuntary manslaughter from the jury's consideration. "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis, supra, 25 Cal.4th at p. 646.) To reach an involuntary manslaughter verdict based on commission of assault with a deadly weapon, the jury would first have had to conclude that Furlan acted without malice, neither intending to kill nor acting in conscious disregard of danger to human life. (§ 192, subd. (b).) Here, the jury was instructed no less than three times that to find Furlan guilty of second degree murder, it had to find he acted with malice—i.e., it must find intent to kill or conscious disregard of life. Accordingly, when the jury found Furlan guilty of second degree murder, the jury necessarily found he acted with intent to kill or conscious disregard of life. The theory of involuntary manslaughter on a voluntary intoxication theory was also presented and argued. By reaching the verdict it did, the jury also necessarily rejected Furlan's mental defect and unconsciousness theories.
The fact the jury acquitted Furlan of first degree murder, based on a theory of premeditation, does not necessarily suggest that the jury was persuaded by Furlan's voluntary intoxication and psychosis evidence. The jury had the option of convicting Furlan of involuntary manslaughter if they found he killed while unconscious due to voluntary intoxication. The jury rejected this possibility, impliedly finding Furlan was in fact conscious at the time of Coffey's killing.
Because the jury's findings necessarily preclude a verdict of involuntary manslaughter, any instructional error in the remaining portion of CALCRIM No. 580 was clearly harmless. (Cf. People v. Lee, supra, 20 Cal.4th at pp. 61-62 [failure to instruct on misdemeanor brandishing theory harmless when "jury had the opportunity to convict defendant of involuntary manslaughter if it found simply an unlawful, unintentional killing, without malice," but "nonetheless rejected the option of an involuntary manslaughter verdict, found intent to kill, and convicted defendant of voluntary manslaughter" (italics omitted)]; People v. McManis, supra, 26 Cal.App.3d at p. 616 ["[b]y its verdict of voluntary manslaughter, the jury could only have concluded [defendant] intended to kill," and because "a verdict of involuntary manslaughter based on proper instructions could have been based only on a finding that [defendant] did not intend to kill . . . , it is clear a proper involuntary manslaughter instruction could not have affected the jury's deliberations"].)
Furlan does not persuasively explain why it is reasonably probable the jury, if instructed that assault with a deadly weapon was the "crime" and on its elements, would have reached a more favorable result with respect to whether Furlan acted with malice. Under the circumstances, it is not reasonably probable a jury so instructed would have hung on the second degree murder charge or convicted Furlan of the lesser offense of involuntary manslaughter. B. Limited Remand
In a supplemental opening brief, Furlan requests a limited remand so that he can make a record relevant to his eventual youth offender parole hearing. (See § 3051, subd. (a)(1); Franklin, supra, 63 Cal.4th 261.) The People concede Furlan's request is appropriate.
In response to Miller v. Alabama (2012) 567 U.S. 460, our Legislature "enacted sections 3051, 3046, subdivision (c), and 4801, subdivision (c), to provide a parole eligibility mechanism for juvenile offenders." (People v. Perez (2016) 3 Cal.App.5th 612, 618.) As originally enacted, only persons under 18 at the time of their "controlling offense" were entitled to a juvenile offender parole hearing (Stats. 2013, ch. 312, § 4). The statute has been amended so that, as of January 1, 2018, persons under 26 at the time of their controlling offense are entitled to a youth offender parole hearing. (§ 3051, subd. (a)(1), as amended by Stats. 2017, ch. 684, § 1.5.) Thus, the Board of Parole Hearings is required to conduct youth offender parole hearings for qualifying offenders during their 15th, 20th, or 25th year of incarceration, depending on the sentence imposed for their controlling offense. (§ 3051, subds. (b), (h).)
Furlan does not come within any of section 3051's exclusions. Because Furlan was 24 years old at the time of his offense, he will be entitled to a youth offender parole hearing during his 20th year of incarceration. (§ 3051, subd. (b)(2).) At such a hearing, "the board, in reviewing a prisoner's suitability for parole . . . , shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)
When the trial court sentenced Furlan in August 2016, the amendments making defendants under 26 eligible for youth offender parole hearings had not yet been enacted. Thus, neither Furlan nor the trial court had any reason to anticipate Furlan's need to make a record of any youth-related factors for later use at a youth offender parole hearing. (See People v. Rodriguez (May 17, 2018, S239713) ___ Cal.5th ___ ; People v. Costella (2017) 11 Cal.App.5th 1, 9-10 [reaching same conclusion after § 3051 amended in 2015 to include offenders under age 23]; People v. Perez, supra, 3 Cal.App.5th at p. 619 [same].) At sentencing, Furlan's mental health and substance abuse issues were discussed. However, neither the prosecutor nor defense counsel presented evidence concerning Furlan's level of maturity, cognitive ability, or other youth-related factors.
We order a limited remand so that both parties may "make an accurate record of . . . [Furlan's] characteristics and circumstances at the time of the offense," so that the Board of Parole Hearings may properly discharge its duty at a future youth offender parole hearing. (Franklin, supra, 63 Cal.4th at p. 284; People v. Costella, supra, 11 Cal.App.5th at pp. 9-10; People v. Perez, supra, 3 Cal.App.5th at pp. 619-620.)
On remand, "the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The offender] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the [offender's] culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the . . . offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors [citation] in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law' [citation]." (Franklin, supra, 63 Cal.4th at p. 284.) "[T]he trial court may exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations." (People v. Rodriguez, supra, ___ Cal.5th at p. ___ [2018 Cal. Lexis 3513, at pp. *14-*15].)
III. DISPOSITION
The matter is remanded for the limited purpose of affording both parties the opportunity to make an accurate record of Furlan's characteristics and circumstances at the time of the offense as set forth in Franklin, supra, 63 Cal.4th 261. In all other respects, the judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.