Opinion
B281178
08-21-2018
THE PEOPLE, Plaintiff and Respondent, v. TYSHAUN VASQUEZ, Defendant and Appellant.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BA432561 APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie C. LaForteza, Judge. Reversed. Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
INTRODUCTION
Under California law, the trial judge in a criminal case must instruct the jury on all lesser-included offenses supported by substantial evidence. And under the federal constitution, a criminal defendant has the right to present a complete defense to the charged crime. That protection includes the right to instructions on the defense theory of the case. Here, defense counsel requested an instruction on the lesser-included offense of involuntary manslaughter—an unlawful killing without malice. Counsel conceded that defendant Tyshaun Vasquez administered a beating that killed Eddie Ray Smith, Jr., but argued defendant was not subjectively aware his actions could be deadly because Smith had a hidden spinal injury (metal rods had been placed in his neck in a prior surgery), the fatal injury was immediately adjacent to the metal rods, and the victim's other injuries were relatively minor. Defendant contends the trial court should have granted his instructional request because there was substantial evidence to support the instruction. We agree and reverse the judgment.
Because we reverse on this basis, we do not reach defendant's additional arguments.
PROCEDURAL BACKGROUND
By information filed January 6, 2016, defendant and codefendant Jordan E. were charged with one count of special-circumstance first degree murder (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17); count 1) and one count of attempted second degree robbery (§ 664/211; count 2). Count 2 further alleged that Jordan personally used a deadly weapon (a trash can) in the commission of the offense (§ 12022, subd. (b)(1)). Defendant pled not guilty and denied the special circumstance.
All undesignated statutory references are to the Penal Code.
Jordan's case was subsequently transferred to juvenile court. He is not a party to this appeal.
Trial was by jury. Defendant did not testify, and the court denied his request to instruct on the lesser-included offense of involuntary manslaughter. The jury convicted defendant of second degree murder but acquitted him of first degree murder and attempted robbery and found the special-circumstance attempted-robbery allegation not true.
Defendant moved for a new trial, again arguing that the court should have instructed the jury on involuntary manslaughter. The court denied the motion and sentenced defendant to 15 years to life in state prison for count 2. The court awarded him 793 days actual custody credit and 0 days local conduct credit.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
On November 30, 2014 at around 12:30 a.m., defendant and Jordan were hanging out in the skate area of Rancho La Cienega Park in Los Angeles. There, they encountered Smith. According to Angel T., the sole eyewitness at trial, defendant and Jordan saw Smith, and defendant said, "let's go get that guy. Let's see if he got money or jewelry or anything like that stuff."
Angel was uncooperative at trial, answering "I'm not sure" to nearly every question he was asked. The court labeled him a hostile witness. On March 18, 2015, Angel had been interviewed by Los Angeles Police Department detectives. On December 8, 2015, Angel testified at the preliminary hearing in this case, where he answered questions more willingly than he did at trial. At trial, the jury was instructed with CALCRIM No. 318 that it could consider Angel's preliminary hearing testimony as fact. (See Evid. Code, § 1235 [prior inconsistent statements].) During deliberations, the jury requested a copy of the preliminary hearing transcript, and the court granted a read-back.
Defendant and Jordan approached Smith and grabbed him. Defendant dug around Smith's pockets. It is unclear whether he took anything. Jordan then punched Smith around 15 times, knocking him to the ground. While Smith was on the ground, defendant stomped on his torso and head approximately 20 times. Smith, meanwhile, was yelling for help. As defendant was stomping on Smith, Jordan picked up a nearby metal trash can and threw it at Smith, hitting him in the right side of the hip. Eventually, defendant and Jordan left the scene.
Soon after the incident, Joel Williams, then a firefighter with the Los Angeles Fire Department, responded to the scene after being flagged down by a woman in the park. Williams saw that the man on the ground, whom he later identified as Smith, needed medical attention. Williams moved the trash can he found on Smith's body and after performing a standard examination, determined that Smith was dead. Later that night, LAPD Detective Brian Calicchia responded to the scene.
Kevin Young, a medical examiner for the Los Angeles County Department of Coroner, performed the autopsy. Young noted a variety of external injuries to Smith's body: trauma on both sides of his head; abrasions on his forehead, temple, and cheek; lacerations on the side of his eye; a swollen right ear with a hematoma and blood and abrasions in front of and behind it; and other injuries. Each of these injuries, considered alone, was nonlethal. All were premortem.
Young also found one significant internal injury: a neck fracture in the C2-C3 vertebrae, just below the jawline. This injury, which can be fatal because it restricts breathing, was likely caused by impact wounds to Smith's head: blunt force trauma was determined to be a "substantial contributing factor" to Smith's death. Young noted that during a prior orthopedic surgery, metal rods had been inserted into Smith's neck directly adjacent to the fracture. That surgery and the rods compromised his neck strength and made him more susceptible to a neck injury in the area. Indeed, because the break occurred right at the edge of the metal rod, the rod could have acted as a fulcrum and contributed to the break.
Still, it would take a high-impact event to cause a serious injury to Smith's neck. Getting punched in the neck would "probably not" be enough. In addition, falling or getting punched in the face likely would not have created a high enough impact to fracture Smith's neck. But getting stomped in the head—either once or repeatedly—or being hit with a metal trash can could be enough to cause a fracture. The location of the impact would have affected the severity of the injury, since the rods made Smith's neck weaker in some areas, such as at the C2-C3 vertebrae, but did not weaken his neck as much in other areas. And Young testified that Smith did not have any other serious head or neck injuries, such as a fractured skull, tooth damage, intracranial bleeding, or brain bruises.
In the examination, Young also inventoried Smith's personal effects. Smith had 12 cents, a wallet, a social security card, multiple credit cards, and a cell phone, but no jewelry.
DISCUSSION
Defendant contends the trial court's refusal to instruct on involuntary manslaughter as a lesser-included offense to murder violated his federal constitutional right to present a complete defense. The People argue the instruction was not supported by substantial evidence and overwhelming evidence rendered any error harmless. We agree with defendant and conclude the People have not proven beyond a reasonable doubt that the error was harmless.
1. Instructional Duty and Standard of Review
"California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 154-155, 162 (Breverman).) The requirement applies when there is substantial evidence that the defendant committed the lesser offense instead of the greater offense. (Id. at pp. 162, 177.)
"In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Breverman, supra, 19 Cal.4th at p. 177.) Thus, "courts should not evaluate the credibility of witnesses, a task for the jury" (id. at p. 162), and uncertainty about whether the evidence is sufficient to warrant instructions should be resolved in favor of the accused (People v. Tufunga (1999) 21 Cal.4th 935, 944). Thus, even evidence that is unconvincing or subject to justifiable suspicion may constitute substantial evidence and may trigger the lesser-included-offense requirement. (People v. Turner (1990) 50 Cal.3d 668, 690.)
When the defense requests the instruction, the refusal to instruct on a lesser-included offense may also violate the federal constitution's requirement that the courts afford every criminal defendant " 'a meaningful opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S. 683, 690; People v. Rogers (2006) 39 Cal.4th 826, 868, fn. 16 (Rogers).) As part of this right, a defendant is " 'entitled to adequate instructions on the defense theory of the case' if supported by the law and evidence [citation] and ' "has a constitutional right to have the jury determine every material issue presented by the evidence ..." ' [Citation.]" (People v. Eid (2010) 187 Cal.App.4th 859, 879; People v. Cash (2002) 28 Cal.4th 703, 736 ["Defendants have a constitutional right to have the jury determine every material issue presented by the evidence, and a trial court's failure to instruct on lesser included offenses denies them that right."].)
We review de novo the trial court's failure or refusal to instruct on a lesser-included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.)
2. Involuntary manslaughter is a lesser-included offense of murder.
Murder is "the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) Express malice is the intent to kill, whereas implied malice exists "where the defendant ... acted with conscious disregard that the natural and probable consequences of [his] act or actions were dangerous to human life. [Citation.]" (People v. Gonzalez (2018) 5 Cal.5th 186, 197.)
While felony murder does not require malice, the jury rejected that theory when it acquitted defendant of both first degree murder and attempted robbery and found the robbery-murder special circumstance not true. (People v. Gonzalez (2012) 54 Cal.4th 643, 654.)
Implied malice has both objective and subjective components. The objective test requires " ' "an act, the natural consequences of which are dangerous to life ... ." ' " (People v. Knoller (2007) 41 Cal.4th 139, 143.) This means the act must carry " 'a high degree of probability that it will result in death.' " (Id. at p. 152.) The subjective test requires that the act be performed " ' "by a person who knows that his conduct endangers the life of another ... ." ' " (Id. at p. 143.) "In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (Ibid.)
An unlawful killing without malice is involuntary manslaughter. (§ 192.) (Rogers, supra, 39 Cal.4th at p. 884 ["Involuntary manslaughter is 'the unlawful killing of a human being without malice aforethought and without an intent to kill.' [Citation.]"].) "Generally, involuntary manslaughter is a lesser offense included within the offense of murder." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) Accordingly, an "instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form the intent to kill." (Rogers, at p. 884.)
Voluntary manslaughter, an intentional, unlawful killing in which certain mitigating circumstances negate the element of malice, is not at issue in this case. (See People v. Rios (2000) 23 Cal.4th 450, 460-461.)
An unlawful killing may also amount to involuntary manslaughter under a misdemeanor-manslaughter theory (§ 192, subd. (b)), but that rule is not at issue here. (See, e.g., People v. Lee (1999) 20 Cal.4th 47, 60-61 [court erred in failing to instruct sua sponte on misdemeanor-manslaughter theory of involuntary manslaughter].)
3. The court denied defendant's requests for an instruction on involuntary manslaughter.
After the prosecution rested, the court held a hearing to discuss jury instructions. Defense counsel asked the court to instruct the jury on involuntary manslaughter based on lack of malice. Counsel's theory was that if the jury rejected Angel's testimony, it would have to acquit defendant of attempted robbery, felony murder, and the special circumstance. At that point, the only contested issue would be defendant's intent.
Defense counsel explained that in light of "the coroner's testimony that none of the [other] blows were fatal and given the fulcrum of where the neck was broken, there was no intent to kill." Though defendant committed an unlawful act, it was "a freak thing." "Beating someone badly, but not inflicting deadly blows, not knowing that the person had prior ... cervical surgery before, how would anybody know? Again, there's no intent to kill. It's a terrible thing that happened, but if the jury rejects—again, rejects count 2 [attempted robbery] and the permutations of it, you know, we're left with regular murder or manslaughter. And, again, that's a question of fact for the jury to decide, the intent aspect. If there's no intent to kill, it can be nothing but involuntary manslaughter."
The prosecutor responded that "if this were a fistfight, I totally get where counsel is coming from. But someone lying on the ground being stomped on 20 times is evidence that—I don't see how a person is not aware that that behavior can result in death and disregard it, the likelihood of someone dying from that behavior."
The following day, the court issued a written statement of decision denying counsel's request for an involuntary manslaughter instruction. The court made various factual findings, including that "defendant stomped approximately 20 times [on] the victim's head and body in a forceful manner." The court concluded the evidence did not support the instruction because "defendant did not simply start a fistfight in which an unlucky blow resulted in the victim's death. He savagely beat and stomped the victim to death." Because this was felonious conduct, the court declined to give the instruction. (See Breverman, supra, 19 Cal.4th at pp. 162, 177 [court may not weigh evidence or evaluate witness credibility when deciding whether substantial evidence supports instruction on lesser-included offense].)
Defense counsel urged the court to reconsider its decision. While the court might not have been required to give the instruction sua sponte, counsel argued, it was required to give it upon request. Counsel explained Smith's broken neck was an anomaly, and "given the facts that none of the injuries, internal or external, described by Dr. Young were fatal or life-threatening, [ ] the perpetrator would not know the natural and probable consequences would be" dangerous to human life. The significance of this evidence was "for the trier of fact to make the determination with regards to malice, to intent."
Indeed, counsel revealed that if the court did give the involuntary manslaughter instruction, counsel would not ask the jury to acquit; he would instead ask the jury to convict of involuntary manslaughter. "My client should be held responsible for what he did," counsel explained. "But to say that the jury should not even consider [involuntary manslaughter] because of the nature of the beating, that someone should know that the natural consequences would be dangerous to human life, I don't think that's the situation given the type of injuries and based on the coroner's testimony."
Finally, counsel emphasized that "the court is precluding me from arguing a defense that I laid out at the very beginning, during voir dire. I was that confident, given the nature of the injuries."
After hearing further argument, the court again denied counsel's request for the instruction.
4. There was substantial evidence from which the jury could conclude defendant acted without malice.
As discussed, a defendant acts without implied malice if he lacks a subjective awareness that his conduct carries " 'a high degree of probability that it will result in death.' " (People v. Knoller, supra, 41 Cal.4th at p. 152.) When viewed in the light most favorable to defendant, there was ample evidence in this case from which a reasonable juror could conclude defendant was not subjectively aware that his actions could kill Smith. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 [sufficiency of the evidence supporting lesser-included offense instruction viewed in light most favorable to the defendant].)
First, the jurors had reasons to be skeptical of the prosecutor's repeated claims that defendant stomped on Smith's head 20 times. The only eyewitness testimony offered at trial came from Angel, who was thoroughly uncooperative, leaving jurors to glean their understanding of events from his preliminary hearing testimony—testimony they asked to hear during deliberations. But even at the preliminary hearing, Angel's memory was hazy, and his testimony was confusing and contradictory. For example, Angel told the police that Smith had been beaten by four men—not two—and defendant was not one of the men who brought Smith to the ground.
Furthermore, reasonable jurors could have concluded the circumstances of Angel's observations were unreliable. In 2014, Angel was only 14 years old. The beating occurred after midnight when it was dark out. Angel was 20 feet away from the scene, his view was blocked at times, and he was distracted by carrying on two phone conversations. Indeed, Angel told the police he could only see Smith from the waist down. Angel could not remember how long the beating lasted. He could not confirm how many stomps occurred—and when asked to estimate, he replied vaguely that there were "like about 20" to Smith's "head, and like his whole body pretty much." Finally, Angel's memory had faded by the time he spoke to the police three and a half months after the incident. Angel's youth, distractions, distance from the scene, reluctance to testify, vagueness and uncertainty about the nature and location of the blows, and inconsistency in recounting the events could have supported a reasonable conclusion that he was an unreliable witness—and Angel's testimony was the only evidence that supported a finding of implied malice.
Even the meaning of stomp was unclear. Angel testified that after Smith fell, he saw that "they were beating him up." Asked to describe what he meant, Angel answered, "he was getting hit. Like, I don't know how to explain it, but he was getting hit, like stomped on." When asked to explain the word "stomp," Angel replied, "raising their foot up."
Second, Smith was not a typical victim. A prior surgery had inserted metal rods into his neck and spine, making Smith unusually vulnerable to a serious neck injury in the precise spot the break occurred. According to Young, the medical examiner, the weakness of Smith's neck was not visible externally. And Young agreed that since Smith's neck snapped at a point immediately adjacent to the end of the metal rod, the rod could have acted as a fulcrum, thereby increasing the force on that area.
Third, that Smith suffered only minor injuries to the rest of his body not only undermined Angel's testimony, but also could have supported an inference that defendant did not use undue force for any of the blows. Young testified that each of the injuries in this case—taken alone—was nonlethal. Smith did not suffer a fractured skull, tooth damage, intracranial bleeding, or brain bruises, which might be expected from multiple high-impact blows to the head. Indeed, Smith's autopsy photos show reasonably mild bruising and lacerations. A reasonable juror could have inferred that this evidence demonstrated that the blows were neither numerous nor severe, and further inferred that defendant believed beating up Smith would injure him but wouldn't kill him. After all, defendant had no apparent motive—the jury rejected the prosecution's robbery theory—but he liked to fight.
California courts have long recognized that not all beatings are life-threatening. "Normally, hitting a person with the hands or feet does not constitute murder in any degree. [Citations.] But if death ... is a reasonable or probable consequence of the beating the offense may be murder. [Citation.] Thus, to constitute murder there has to be either an intent to kill or such wanton and brutal use of the hands [or feet] without provocation as to indicate that they would cause death ... ." (People v. Teixeira (1955) 136 Cal.App.2d 136, 150, italics added; accord, People v. Cravens (2012) 53 Cal.4th 500, 508 ["This state has long recognized 'that [while] an assault with the fist ... may be made in such a manner and under such circumstances as to make the killing murder' [citation] ... 'if the blows causing death are inflicted with the fist, and there are no aggravating circumstances, the law will not raise the implication of malice aforethought, which must exist to make the crime murder.' [Citation.]"].) Based on this evidence, a jury could reasonably doubt that the prosecution proved defendant had employed "such wanton and brutal use of the hands [or feet] ... as to indicate that they would cause death ... ." (Teixeira, at p. 150.)
The People cite two cases in support of their claim that no substantial evidence supported an involuntary manslaughter instruction here. Both are inapt.
In Guillen, the manner and circumstances of a jail assault on a murder victim provided sufficient evidence, under an aiding and abetting theory, to support the jury's conclusion that each defendant inmate was subjectively aware that the natural and probable consequences of his conduct were dangerous to life. (People v. Guillen (2014) 227 Cal.App.4th 934, 982-992 (Guillen).) In that case, the victim, a child molester, was escorted to one of the only places in the jail where deputies could not see an attack. (Id. at pp. 985-986.) Between 30 and 50 inmates assaulted the victim—by hitting him, kicking him, stomping on him, spanking him, spitting on him, urinating on him, spilling hot coffee on him, stripping off his clothes, and putting foreign items in his rectum—and the victim's injuries, which included 21 broken ribs, a punctured lung, and a hemorrhagic back, were consistent with a high-velocity car accident or a fall from multiple stories. (Ibid.) The court concluded a reasonable person would have understood that this type of vicious group assault could be fatal. (Id. at pp. 988-989.)
Unlike in Guillen, in which the court assessed whether the evidence was sufficient to support the verdict, we must decide whether there was sufficient evidence to warrant an instruction on a lesser-included offense. Thus, whereas Guillen viewed the evidence in the light most favorable to the prosecution, we must view that evidence in the light most favorable to the defense. (People v. Millbrook, supra, 222 Cal.App.4th at p. 1137.) And while the Guillen victim's premortem injuries were consistent with a fall from a tall building, Smith's premortem injuries were relatively minor. Finally, unlike in Guillen, the prosecution here did not argue—and the jury was not instructed—that defendant acted in concert with or aided and abetted Jordan.
In Evers, the other case cited by the People, the court concluded there was no error in the failing to instruct on involuntary manslaughter where the injuries suffered by the child victim were severe, and evidence of the defendant's prior child abuse established he was aware of the risk of his actions. (People v. Evers (1992) 10 Cal.App.4th 588.) In that case, there was undisputed evidence the deceased child suffered physical injuries equivalent to those that would result from a 10-to-30-foot fall. (Id. at p. 597.) The record established the defendant had used violent force against the child in the past, and he therefore must have been aware of the risk of death. (Id. at p. 598.) Here, however, there was no evidence defendant actually knew his actions could kill Smith, and Smith's premortem injuries were not particularly severe.
In sum, because there was substantial evidence in this case from which a reasonable juror could have doubted that defendant was subjectively aware the beating could kill Smith, the court was required to instruct on the lesser-included offense of involuntary manslaughter.
5. The error violated defendant's constitutional right to present a complete defense.
In a non-capital case, the erroneous failure to instruct on a lesser-included offense is typically an error of state law. (Rogers, supra, 39 Cal.4th at pp. 867-868.) But the erroneous denial of a defendant's requested instruction embodying the defense theory of the case may also violate the defendant's federal due process right to present a complete defense. (Id. at pp. 868, fn. 16, 872 [citing "cases in which federal courts have held that a trial court's failure to give a requested instruction (whether on a lesser included offense, or on some other subject) embodying the defense theory of the case and around which the defendant had built his or her defense, violated the defendant's due process right to present a complete defense"]; People v. Eid, supra, 187 Cal.App.4th at pp. 879-884.)
"If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would [also] violate the defendant's constitutional right to have the jury determine every material issue. [Citation.]" (People v. Cook, supra, 39 Cal.4th at p. 596.)
The rationale for requiring instruction on lesser included offenses is to avoid forcing the jury into an " 'unwarranted all-or-nothing choice' " which creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because " 'the defendant is plainly guilty of some offense.' " (People v. Hughes (2002) 27 Cal.4th 287, 365; accord, People v. Majors (1998) 18 Cal.4th 385, 410 ["One of the primary reasons for requiring instructions on lesser included offenses is ... to eliminate ' "the risk that the jury will convict ... simply to avoid setting the defendant free." ' [Citation.]"]; People v. Barton (1995) 12 Cal.4th 186, 196, 203 [" 'Our courts are not gambling halls but forums for the discovery of truth.' " The "jury's truth-ascertainment function" is impaired unless it is provided with "the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence"].)
Here, counsel structured the entire defense around one element: malice. In his opening statement, counsel explained that defendant, "right or wrong, has a penchant for getting into stupid fights. Okay? Nothing to do with attempted robberies or—just getting into fights all the time." He acknowledged Smith was beaten. But none of his injuries were lethal. Smith ultimately died from neck trauma. And, counsel explained, Smith had prior injuries to his spine that had compromised the vertebrae in the very spot in which his neck broke. He therefore concluded his opening statement by telling the jury, "I would suggest to you that at the end of the day that you're going to find ... that this is in fact an involuntary manslaughter."
The cross-examination of the medical examiner was also structured around one element. For example, counsel asked Young about each of Smith's injuries and confirmed that none of them were potentially fatal. He confirmed defendant's teeth were intact, that his skull was not fractured, and that there was no trauma to his brain. Then, counsel spent the bulk of cross-examination asking Young about the relationship between Smith's prior neck injury and his death. He elicited testimony that the break itself was right on the edge of the metal rods, and those rods could have acted as a fulcrum that helped cause the break. As he explained when he requested the instruction, this was the foundation of counsel's theory that there was no intent to kill.
Yet after asking the jury in his opening statement to convict of involuntary manslaughter, in his closing argument, counsel asked them to acquit entirely. He still conceded the other elements: "There's no issue whether Tyshaun Vasquez was involved in this case. ... That's not an issue here. [¶] The issue is a question of was there a crime committed and what is that crime?" And he still focused on intent: did defendant know that death was a natural and probable consequence of his actions?
Counsel made it clear, however, that he did not believe this was the right result. For example, he explained, "In this case, the prosecution chose to file murder. Granted, there's two theories that the prosecutor has in this case, but they chose to file murder. Didn't choose to file manslaughter, didn't choose to file justifiable homicide. Those are not issues. The issue before us is what the prosecutor chose to file, and you have to address that. You have to deal with that." Again: "We all agree people should be held responsible for what they do, but in a court situation, we're limited to what's charged. Again, it's a homicide. The prosecution has a lot of ways to charge homicide. ... The choice was made by the prosecutor here."
In the end, without an instruction on involuntary manslaughter, defense counsel was left to tell the jury this: "You know, I'd love to tell you, sure, hold Tyshaun responsible; but based on what we have here and now, this case has not been proven beyond a reasonable doubt. It's just the way it was pled."
The court's refusal to instruct the jury on the lesser-included offense of involuntary manslaughter placed defense counsel in the untenable position of arguing that his client—who had plainly killed a man—should be set free. Because the requested instruction embodied the defense theory of the case, the error violated defendant's federal constitutional right to present a complete defense.
6. The People have not proven beyond a reasonable doubt that the error was harmless.
"We assess federal constitutional errors under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Under Chapman, we must reverse unless the People 'prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Ibid.)" (People v. Valenti (2016) 243 Cal.App.4th 1140, 1165-1166.) The People insist the court's refusal to instruct on involuntary manslaughter was harmless because "there was overwhelming evidence of malice in this case. ... Appellant cannot credibly claim that stomping on the victim's head and upper body 20 times did not constitute 'malice' sufficient for second degree murder." The People's two cited authorities—provided without any discussion or analysis—do not support their position.
In People v. Moye, the court concluded any error in failing to instruct the jury sua sponte on a heat-of-passion theory of voluntary manslaughter—in addition to instructions that were given on imperfect self-defense manslaughter—was harmless under state law. (People v. Moye (2009) 47 Cal.4th 537, 557-558 (Moye).) There, the jury heard and rejected defendant's theories of self-defense and imperfect self-defense. (Id. at p. 558.) Once it did so, there was little (if any) evidence to support the claim that he was acting in a subjective "heat of passion" when killing the victim. Specifically, defendant's testimony that the victim kicked his car and attacked him with a bat did not amount to legally sufficient provocation required for a heat-of-passion defense unrelated to the perceived need for self-defense. (Ibid.) But the evidence did establish that after enlisting the help of two compatriots, the defendant found the victim, chased him "over a chain link fence and through a field, caught him and bludgeoned him to death with a baseball bat, after which defendant disposed of the bloodied murder weapon in a nearby storm drain." (Id. at p. 557) The strength of this evidence, coupled with the jury's rejection of the self-defense claim, rendered the error harmless.
In People v. Flood, the trial court failed to instruct the jury that to convict the defendant of evading a peace officer, the prosecution was required to prove that the defendant evaded actual peace officers. (People v. Flood (1998) 18 Cal.4th 470, 505 (Flood).) The court found the error harmless under Chapman because the "[d]efendant never referred to this element of the crime during the trial and did not argue to the jury that the prosecution had failed to prove this element beyond a reasonable doubt; indeed, he did not ask that the issue even be considered by the jury. Furthermore, defendant presented no evidence regarding the peace officer element, and failed to dispute the prosecution's evidence regarding the issue." (Ibid.) These actions were "tantamount to a concession" of the element. (Ibid.)
We note that Flood predates both the Supreme Court's decision in Neder v. United States (1999) 527 U.S. 1, 17-19 concerning the failure to instruct on an element of an offense, and our Supreme Court's opinion interpreting Neder, People v. Mil (2012) 53 Cal.4th 400. (See People v. Valenti, supra, 243 Cal.App.4th at pp. 1165-1167 [discussing Neder and Mil].) Those cases established that the prosecution must make an even greater showing to prove harmlessness than is typically required for federal constitutional errors. (Ibid.)
Moreover, the Flood court noted "the verdict demonstrate[d] that the jury resolved every contested issue in favor of the prosecution and, in particular, credited the testimony of all of the witnesses who testified regarding [the officers'] status as peace officers. On the only issue related to the 'peace officer' issue that defendant actually contested, the jury rejected defendant's contention and found that the motor vehicle in which the officers were driving was 'distinctively marked.' " (Flood, supra, 18 Cal.4th at p. 505.)
Unlike Moye, the case before us is not one in which the jury rejected other theories of guilt in favor of one requiring a more culpable mental state, indicating that if properly instructed, the jury would still have found defendant guilty of a crime greater than involuntary manslaughter. And unlike Flood, this is not a case in which the jury demonstrably decided every contested issue in favor of the prosecution and fully credited every prosecution witness. To the contrary, the jury's verdicts here—acquitting defendant of premeditated murder, acquitting defendant of felony murder, acquitting defendant of attempted robbery, and finding the attempted-robbery special circumstance not true—indicate it rejected the prosecution's theory of the case. Furthermore, since Angel provided the only evidence to support the attempted robbery count, the jury apparently rejected at least some of Angel's testimony.
Nor is this a case in which the court failed to instruct on a peripheral issue, as in Moye, or a conceded element, as in Flood. Unlike the trial courts in those cases, the court here refused repeated defense requests to instruct on a lesser crime that embodied the entire defense. Here, the court refused to instruct on a lesser crime that addressed the only element the defense contested.
" 'The necessity for instructions on lesser included offenses is based in the defendant's constitutional right to have the jury determine every material issue presented by the evidence. [Citations.] ... "True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." [Citation.]' [Citation.]" (People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547.)
There is evidence here that the jury struggled with just this problem. As discussed, the defense did not contest identity and conceded that defendant killed Smith. Defendant's only claim was that he lacked malice. Indeed, defense counsel acknowledged that ideally, defendant should be convicted of something and lamented that the prosecution's charging decision placed the jury in such a difficult position. Yet without an involuntary manslaughter instruction, the jury was left to decide between first degree murder, second degree murder, and ... nothing. It is unsurprising, therefore, that according to defense counsel, after trial, the foreperson told both attorneys that some jurors had wished for a manslaughter instruction and that had one been given, "she thought it might have actually hung up between manslaughter and second degree."
The prosecutor did not object to defense counsel's statement. (Evid. Code, § 1350; see People v. Engstrom (2011) 201 Cal.App.4th 174, review den. Feb. 29, 2012, S199153 [prosecution forfeited claim that court improperly relied on defense counsel's information and belief declaration when granting motion for new trial motion based on juror misconduct].) Instead, the prosecutor acknowledged that the jurors felt that way, but argued that because there was no substantial evidence to support the instruction, the fact that some jurors, given the chance, may have voted for involuntary [manslaughter] "reinforces that involuntary manslaughter wouldn't have been appropriate ... ."
Nor do the People argue on appeal that we should not consider this part of the record.
As we have discussed at length above, the error went to the heart of the defense case. The defense in this case was that defendant did not try to rob Smith and didn't know the beating would kill him. The jury agreed—at least in part. Jurors acquitted defendant of premeditated murder. They acquitted him of felony murder. And they acquitted him of attempted robbery. In so doing, they rejected the prosecutor's theory of the case and at least some of Angel's vague, contradictory testimony. The jury deliberated for two days, asked several questions, and received supplemental closing arguments. As such, the People have not established beyond a reasonable doubt that the error was harmless. Therefore, defendant's conviction must be reversed.
DISPOSITION
The judgment is reversed, and the matter is remanded for retrial.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.