Summary
noting the general rule that a person engaged in mutual combat may not claim self-defense
Summary of this case from Phillips v. WoodfordOpinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the Jan. 2000 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of Los Angeles County, No. BA134574, Gregory Wilson Alarcon, Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Jaime L. Fuster and Martin L. Pitha, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MASTERSON, J.
Introduction
Defendant Valerie Bolden appeals from a judgment entered after a jury found her guilty of second degree murder (Pen. Code, sections 187, subd. (a), 189), in the commission of which she used a deadly weapon, a knife (id., section 12022, subd. (b)). The court found true the allegations defendant previously had been convicted of two serious or violent felony convictions (id., sections 667, subds. (a)-(i), 1170.12), after which the court sentenced defendant to state prison for a term of fifty-six years to life imprisonment. We affirm the judgment.
Statement of Facts
On the evening of July 3, 1996, defendant's husband, Bernard Mason (Mason), was standing next to a parked car, conversing with the woman inside. Defendant and her friend, Glenda Polidore (Polidore), drove past in Polidore's car. Defendant saw Mason speaking to the woman in the parked car when he supposedly was visiting male friends. She demanded that Polidore stop, stepped out of the car and approached Mason. An argument followed.
As time passed, tempers apparently cooled. Mason bought defendant and Polidore each a beer from a nearby store. Mason, his friend Robert Burns (Burns), defendant and Polidore decided to go to a nightclub. Defendant and Polidore drove to Polidore's home to change clothing. Mason and Burns arrived approximately 20 minutes later.
Polidore and defendant ultimately decided not to go to the club and then went outside to tell the men. Defendant warned Mason that if he went out that evening, he should "watch and see what happens." Defendant then struck at Mason's chest with a rusty, dull butcher knife, which did not penetrate Mason's skin.
Such behavior was "nothing new" to Polidore. Defendant and Mason fought constantly, hitting and punching each other seriously with their fists; defendant instigated many of these fights.
Mason left and went to a club with his friends. He returned to Polidore's home an hour or so later and, although intoxicated, he was in a good mood. He called defendant by a pet name and attempted to apologize to her.
Defendant, who was using a knife to peel potatoes over a large pot of water, was irked with Mason. She told him to leave her alone. Mason continued his attempt to appease her, but they soon became embroiled in an argument. This rapidly escalated into a pushing and shoving match, which defendant initiated. Mason, who was five feet nine inches tall, weighed two hundred forty-one pounds and was very muscular, became enraged. He charged defendant. She retreated, running into the bedroom of Polidore's 13-year-old daughter, Myeshia, with Mason in pursuit. Defendant closed the door, but Mason yanked it open.
Defendant is 5 feet 11 inches tall; she weighs 165 pounds.
She must have reacquired the knife, for she used both hands to throw the pot of water at Mason.
Defendant, still pursued by Mason, ran out of the bedroom back into the kitchen. Using both hands, she threw the pot of water at him in an effort to impede his progress. Mason chased defendant through the house. Defendant, in an effort to defend herself, threw numerous objects at him. After one article almost struck Polidore's three-year-old, she took the child into her room and shut the door. Before she did so, she saw defendant, who had acquired the knife with which she had been peeling potatoes, make a stabbing motion toward Mason. Mason again charged defendant, who immediately ran into another room with Mason in close pursuit.
Shortly thereafter, 13-year-old Myeshia heard someone fall. She ran into the kitchen, where she found Mason lying facedown on the floor. Defendant ran past her and out the back door with the knife in her hand.
Polidore heard Mason ask her to call 911; he said defendant had stabbed him. Polidore did so, then discovered Mason had been stabbed in the chest. There was a great deal of blood on his chest and on the floor. He did not appear to be breathing, and she was unable to feel his pulse.
Immediately after the paramedics and police arrived, defendant returned. When Polidore told her that Mason was dead, defendant ran to the ambulance. She looked inside, then said, "Oh, baby, baby. I'm sorry. I'm sorry. I didn't mean to do it." Highly distraught, defendant told a police officer, "We were just fighting."
Defendant had no apparent injuries following this incident. Polidore told detectives that, in her opinion, defendant meant to "draw blood" but did not mean to kill Mason.
Mason died of a stab wound that penetrated his chest, a rib and his heart. The entrance wound was one and one-quarter inches wide, meaning the knife entered Mason's body up to the knife's widest part, just below the handle. The wound was three and three-quarters to four and one-half inches long; the tip stopped just short of penetrating the rear of the pericardial sac.
Polidore told defense Investigator Joel Rogers that she did not think defendant was trying to kill Mason. She also said she did not think defendant was afraid of Mason.
Contentions
Defendant contends the trial court (1) erred prejudicially in failing to instruct the jury on the lesser included offense of involuntary manslaughter; (2) violated her constitutional rights to due process of law and to mount a defense when it excluded evidence that she suffered bruises while living with Mason; (3) erred prejudicially in failing to instruct the jury with her proposed special jury instruction; and (4) improperly sentenced her to a triple term of 45 years to life imprisonment rather than to a term of 25 years to life imprisonment. The People ask (5) that the abstract be corrected to impose restitution fines.
Discussion
1. Failure to Instruct on Involuntary Manslaughter
Defendant contends the trial court erred prejudicially in failing to instruct the jury on the lesser included offense of involuntary manslaughter. We disagree.
The trial court must instruct on lesser included offenses even in the absence of a request where the evidence raises a question as to whether all elements of the charged offense are present. (People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rptr.2d 569, 906 P.2d 531]; People v. Duncan (1991) 53 Cal.3d 955, 970 [281 Cal.Rptr. 273, 810 P.2d 131].) Nonetheless, there must be evidence the defendant is guilty of the lesser offense that is substantial enough for consideration by the jury. (Barton, supra, at p. 195, fn. 4.) " 'Substantial evidence' in this specific context is defined as evidence which is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable men could have concluded' " that the particular facts underlying the instruction did exist.' [Citations.]" (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139-1140 [222 Cal.Rptr. 630].)
The court's instructional obligation exists even when defense counsel objects to the instruction in question for tactical reasons. (People v. Barton, supra, 12 Cal.4th at pp. 190, 196.) But when defense counsel deliberately refuses the opportunity to receive certain instructions, any error in failing to give the jury those instructions is invited error. (Id. at p. 198; People v. Lara (1994) 30 Cal.App.4th 658, 673-674 [35 Cal.Rptr.2d 886].) In these circumstances, the defendant is estopped from claiming prejudicial error on appeal. (People v. Delgado (1973) 32 Cal.App.3d 242, 254 [108 Cal.Rptr. 399], disapproved on another ground in People v. Rist (1976) 16 Cal.3d 211, 221-222 and fn. 10 [127 Cal.Rptr. 457, 545 P.2d 833]; see also People v. Pride (1992) 3 Cal.4th 195, 228 [10 Cal.Rptr.2d 636, 833 P.2d 643].)
The trial court expressly asked defense counsel whether she wanted any instructions in addition to self-defense instructions. Counsel replied that she did not. In other words, counsel believed it was in her client's best interests not to receive lesser included offense instructions, believed the court would give them if she did not object and was aware that her objection likely would cause the court not to give them. She made a deliberate tactical choice not to have the jury receive such instructions. (People v. Cooper (1991) 53 Cal.3d 771, 831 [281 Cal.Rptr. 90, 809 P.2d 865].) Counsel's choice clearly invited error.
The prosecutor then asked the court to give a voluntary manslaughter instruction, arguing the evidence warranted this. Agreeing, the court acquiesced in the request. If defense counsel believed the court's decision changed the tactical considerations so that instruction on involuntary manslaughter now was in her client's best interests, she should have said so. Her failure to state that her tactics had changed invited the court's error, if any, in failing to instruct on involuntary manslaughter.
In short, defendant is estopped from claiming prejudicial error on appeal from the court's failure to instruct on involuntary manslaughter. (People v. Delgado, supra, 32 Cal.App.3d at p. 254; see also People v. Pride, supra, 3 Cal.4th at p. 228.) Inasmuch as any error was invited, we need not consider whether the evidence warranted instruction on involuntary manslaughter. 2. Exclusion of Evidence of Bruises
Defendant asserts the trial court violated her constitutional rights to due process of law and to mount a defense when it excluded evidence that she suffered bruises while living with Mason. The assertion lacks merit.
As defendant notes, the right to present a defense, including the right to offer the testimony of witnesses, is a fundamental element of due process. (Washington v. Texas (1967) 388 U.S. 14, 19 [87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019].) Plaintiff's error is in assuming that the mere existence of injuries to her while she was living with Mason is somehow relevant to her defense.
Evidence, whether direct or indirect, is relevant whenever " 'it tends logically, naturally, and by reasonable inference to prove or disprove a material issue.' " (People v. Jaspal (1991) 234 Cal.App.3d 1446, 1462 [286 Cal.Rptr. 337], quoting from People v. Jones (1954) 42 Cal.2d 219, 222 [266 P.2d 38]; accord, People v. Champion (1995) 9 Cal.4th 879,922 [39 Cal.Rptr.2d 547, 891 P.2d 93].) It must " ' "render[] the desired inference more probable than it would be without the evidence." [Citations.]' " (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 787 [174 Cal.Rptr. 348].) This definition encompasses all evidence which, no matter how weak, tends to prove any issue in a proceeding either directly or by reasonable inference. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 347 [234 Cal.Rptr. 442]; People v. Slocum (1975) 52 Cal.App.3d 867, 891 [125 Cal.Rptr. 442], cert. den. (1976) 426 U.S. 924 [96 S.Ct. 2635, 49 L.Ed.2d 379].) It does not encompass evidence giving rise only to speculative inferences. (People v. Babbitt (1988) 45 Cal.3d 660, 681-682 [248 Cal.Rptr. 69, 755 P.2d 253].) The trial court has wide discretion in determining the relevance of evidence, but no discretion to admit irrelevant evidence. (People v. Edwards (1991) 54 Cal.3d 787, 817 [1 Cal.Rptr.2d 696, 819 P.2d 436]; Babbitt, supra, at p. 681; see also Evid. Code, section 350.)
Defense counsel sought to introduce the testimony of a social worker who saw defendant through a window of her home in 1995, when defendant was living with Mason, and observed that she had a black eye. The social worker also could testify that defendant frequently had bruises on her face during this period.
There are many explanations for bruises and even for a black eye. This is particularly true when the person who has sustained these bruises is as combative as is defendant. The evidence showed not only that she and Mason fought frequently but that defendant also fought with other individuals. That defendant had bruises while living with Mason does not support an inference that he inflicted the bruises, although he may have done so. To conclude that he did would require conjecture or speculation. The trial court properly excluded this evidence as irrelevant.
3. Failure to Give Defendant's Special Instruction
Defendant additionally asserts that the trial court erred prejudicially in failing to instruct the jury with her proposed special jury instruction. We disagree.
Defense counsel requested the following instruction: "If you find that the defendant has previously been assaulted by the alleged victim, you are instructed that the defendant, as a reasonable [person], is entitled to act more quickly and take harsher measures of self-protection than one who has not been previouslythreatened."
A defendant is entitled to receive a requested jury instruction regardless of how remote or incredible the theory if it finds support in any evidence deserving of consideration. (People v. Flannel (1979) 25 Cal.3d 668, 684 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Pitts (1990) 223 Cal.App.3d 606, 881 [273 Cal.Rptr. 757]; People v. La Fargue (1983) 147 Cal.App.3d 878, 886 [195 Cal.Rptr. 438].)
The court is not obligated to give an argumentative instruction. An instruction that attempts to relate particular facts to legal issues generally is objectionable as argumentative. (People v. Wharton (1991) 53 Cal.3d 522, 570 [280 Cal.Rptr. 631, 809 P.2d 290].)
Assault has a particular definition. It is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, section 240.) While voluntary mutual combat generally makes both participants guilty of assault (People v. Lucky (1988) 45 Cal.3d 259, 291 [247 Cal.Rptr. 1, 753 P.2d 1052]), that is not always the case. A mutual combatant may have a right of self-defense if he first withdraws from the fray. (Pen. Code, section 197, subd. 3; People v. Bolton (1979) 23 Cal.3d 208, 215 [152 Cal.Rptr. 141, 589 P.2d 396].)
There is substantial evidence that Mason and defendant fought on a regular basis. Many of these fights were instances of mutual combat in which each participant attempted to inflict injury on the other. In many instances, defendant was the aggressor. Defendant is technically correct in stating that the evidence shows she had been the victim of Mason's assaults in the past (as he had been the victim of hers). The circumstances present in this case are not those in which the courts have found the requested instruction justified.
In People v. Pena (1984) 151 Cal.App.3d 462 [198 Cal.Rptr. 819], the victim, who had a reputation for violence with others, repeatedly threatened the defendant. (At pp. 476-477.) In People v. Bush (1978) 84 Cal.App.3d 294 [148 Cal.Rptr. 430], the victim viciously beat the defendant and threatened to "put her in her grave." (At p. 304.) In People v. Moore (1954) 43 Cal.2d517 [275 P.2d 485], the victim repeatedly beat and abused the defendant. (At p. 528.) Finally, in People v. Torres (1949) 94 Cal.App.2d 146 [210 P.2d 324], while the victim and the defendant previously had engaged in a brawl, the victim, who was known to be violent and to carry a knife, emerged from the brawl threatening the defendant's life. (At pp. 148-150.) There is no comparable evidence in this case, no evidence that in any of their fights, Mason overwhelmed defendant and beat her.
Defendant picked and chose her facts, focusing on Mason's technical "assaults" while ignoring the circumstances. This made her requested instruction argumentative. (People v. Wharton, supra, 53 Cal.3d at p. 570.) The trial court therefore did not err in refusing to give the requested instruction.
4. Claimed Sentencing Error
Finally, defendant contends the trial court improperly sentenced her to a triple term of 45 years to life imprisonment rather than to a term of 25 years to life imprisonment. The contention has no merit.
This issue is pending before the California Supreme Court in People v. Diaz (1997) 54 Cal.App.4th 1499 [63 Cal.Rptr.2d 690] review granted August 20, 1997 (S062147).
The reason defendant did not testify is fairly clear: she had suffered two prior serious or violent felony convictions. Her testimony thus would have been subject to impeachment.
Subdivision (e) of Penal Code section 667 provides in pertinent part: "For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [¶] ... [¶] (2) (A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. [¶] (ii) Imprisonment in the state prison for 25 years. [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046." Penal Code section 1170.12, subdivision (c) (2) (A) contains the same language.
Defendant contends option (i) is not applicable to her current conviction of second degree murder, in that the word "term" in option (i) refers only to "determinate" terms, not indeterminate terms. Under defendant's proposed construction, only options (ii) and (iii) apply to third strike defendants whose sentence otherwise would be an indeterminate term. Under either of these calculations, defendant's sentence would be 25 years to life imprisonment.
In reaching her conclusion, defendant places great emphasis on the use simply of the word "term" in subdivision (e) (2) (A)of Penal Code section 667 when subdivision (e) (1) uses the phrase "determinate term or minimum term for an indeterminate term." Concluding that significance must be given the difference, defendant invokes the rule that the omission from a similar statute of a critical phrase used in another generally demonstrates a difference in legislative intent. She has overlooked the reason for the distinction.
Subdivision (e) (1)of Penal Code section 667 provides that if a defendant has one "strike," "the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." It deals with both determinate terms and indeterminate terms, as those terms would be applied to the underlying offense were it not for the three strikes law, in calculating second strike sentences. In contrast, subdivision (e) (2) (A) deals only with indeterminate terms, the sentence imposed on a third strike defendant. It specifies the means by which the minimum term is to be calculated. There thus is no need to differentiate between determinate terms and the minimum term for an indeterminate term. Determination of the latter is the sole subject matter of this subdivision. In short, the difference in wording has no significance.
Defendant also ascribes significance to the Legislature's use of the word "period" in option (iii) of subdivision (e) (2) (A) of Penal Code section 667. This word, she suggests, refers to indeterminate sentences.
Penal Code section 4 provides: "The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice." (See People v. Martin (1995) 32 Cal.App.4th 656, 662 [38 Cal.Rptr.2d 776].)
Applying this rule of construction requires the rejection of defendant's proffered interpretation. The Legislature's use of the word "period" in option (iii) may be construed to include indeterminate terms (including the minimum and the maximum), minimum terms before parole eligibility under Penal Code section 3046 and death or life-without-possibility-of-parole sentences. In other words, a three strikes sentence is not to be imposed where a greater penalty, such as death or life imprisonment without possibility of parole, otherwise would be required. There is no suggestion in option (iii) that the word "period" excludes the minimum term of an indeterminate sentence.
Moreover, subdivision (e) (2) (A)of Penal Code section 667 uses the word "term" three times in reference to indeterminate sentences. When first used, the word relates to both the minimum and maximum terms. The second usage concerns an indeterminate term of life imprisonment. The final usage pertains to the minimum term of the indeterminate sentence calculated under the three strikes law. The subdivision also uses the word "sentence" interchangeably with the word "term," referring to the combined minimum and maximum terms. The Legislature therefore obviously did not intend to limit the applicability of the word "term" to only determinate sentences.
It is a fundamental rule of statutory construction that " ' "[t]he meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute.]" ' [Citation.] 'The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme [citation] ....' [Citation.]" (People v. Ramirez (1995) 33 Cal.App.4th 559, 563 [39 Cal.Rptr.2d 374].)
Defendant's interpretation of subdivision (e) (2) (A)of Penal Code section 667 would lead to absurd results. A first degree murderer with only one prior strike would receive an indeterminate term of fifty years to life imprisonment under subdivision (e) (1), which doubles the minimum term of an indeterminate sentence for a "second strike" defendant. But if the same murderer has two or more strikes, he could receive only an indeterminate term of twenty-five years (plus enhancements) to life imprisonment.
Adopting an interpretation which does not limit the use of the word "term" to determinate terms would serve the object of the three strikes law, which is to provide longer sentences for those with histories of serious or violent recidivism. (People v. Samuels (1996) 42 Cal.App.4th 1022, 1029-1030 [50 Cal.Rptr.2d 157]; People v. Ingram (1995) 40 Cal.App.4th 1397, 1410 [48 Cal.Rptr.2d 256].) It would also promote justice among recidivists of varying degrees, as well as defendants with no "strikes." Such a construction would harmonize the language with the obvious intent of the legislation. Accordingly, the trial court did not err in imposing a tripled sentence of 45 years to life imprisonment.
5. Restitution Fines
The People note that the abstract of judgment fails to reflect the $2,000 restitution fine the court imposed at the sentencing hearing pursuant to Penal Code section 1202.4, subdivision (b), and the trial court failed to impose the additional restitution fine mandated by Penal Code section 1202.45 (mandating a restitution fine in the same amount to be imposed when the sentence includes a period of parole, the fine to be suspended unless parole is revoked). They ask that we correct these omissions. As is our practice, we decline to do so, for the People did not raise these issues in the trial court, the proper forum in which to pursue these requests. (People v. Deptowicz (1999) 69 Cal.App.4th 979, 987 [81 Cal.Rptr.2d 891].)
Disposition
The judgment is affirmed.
Vogel (Miriam A.), J., concurred.
CONCURRING AND DISSENTING:
SPENCER, P. J.,
Concurring and Dissenting.—I concur in parts 2, 3 and 4 of the majority opinion, and I respectfully dissent from part 1. I agree that defense counsel initially made a deliberate tactical choice to have the jury receive only self-defense instructions and not any instructions on lesser included offenses. I agree that in making this choice, defense counsel clearly invited error. Had the court acceded to defense counsel's wishes and given no lesser included offense instructions, there would be no question that the doctrine of invited error applies. (See, e.g., People v. Lara (1994) 30 Cal.App.4th 658, 673 [35 Cal.Rptr.2d 886]; People v. Scobie (1973) 36 Cal.App.3d 97, 101 [111 Cal.Rptr. 600].) What the majority overlooks, however, is that the trial court rejected counsel's tactical choice and, in doing so, necessarily rejected the invitation to error.
It is the making of an express tactical decision that sets the stage for invited error. (People v. Duncan (1991) 53 Cal.3d 955, 969 [281 Cal.Rptr. 273, 810 P.2d 131]; People v. Cooper (1991) 53 Cal.3d 771, 827 [281 Cal.Rptr. 90, 809 P.2d 865].) It is the court's reliance on the decision that creates invited error. (See, e.g., Duncan, supra, at pp. 969-970; Cooper, supra, at pp. 826-827.) The tactical choice in this case was that the jury not receive any lesser included offense instructions. When the trial court acceded to the prosecution's request for voluntary manslaughter instructions after asking for comment on its sua sponte duty, it rejected that tactical choice with as much certainty as if the judge had responded to defense counsel's desire to have only self-defense instructions by saying, "I decline your request as I believe the evidence would support a verdict of voluntary manslaughter. Therefore, I am going to give voluntary manslaughter instructions." There could not be a clearer rejection of defense counsel's expressed tactical decision, which was to narrow the jury's choices to murder and acquittal due to self-defense. (See, e.g., People v. Phillips (1966) 64 Cal.2d 574, 581, fn. 4 [51 Cal.Rptr. 225, 414 P.2d 353].) Having rejected it, the court could not have relied on that tactical decision as a basis for failing to instruct the jury on involuntary manslaughter.
When the court decides to instruct the jury on one lesser included offense such as voluntary manslaughter, the tactical advantage of limiting the jury's options to murder or acquittal disappears. It is destroyed utterly, for the jury now has the option of convicting but treating the defendant less harshly. Consequently, the expressed tactical basis for defense counsel's decision, presenting the jury with an "all or nothing" choice, no longer exists. The defense must make a new tactical decision supported by a fresh demonstration of some tactical advantage. To hold that when a trial court has rejected defense counsel's tactical choice by deciding to instruct on a lesser included offense, the doctrine of invited error nonetheless applies to a failure to instruct on any other included offenses is to make a mockery of the court's sua sponte instructional duty. It is the equivalent of holding that any failure to request an instruction is a tactical choice that invites error.
As People v. Barton (1995) 12 Cal.4th 186 [47 Cal.Rptr.2d 569, 906 P.2d 531] notes, the doctrine of invited error applies when "the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence." (At p. 198, italics added.) Persuasion is something " 'more than mere unconsidered acquiescence.' " (People v. Hardy (1992) 2 Cal.4th 86,184 [5 Cal.Rptr.2d 796, 825 P.2d 781].) "The trial court's duty to fully and correctly instruct the jury on the basic principles of law relevant to the issues raised by the evidence in a criminal case is so important that it cannot be nullified by defense counsel's negligent or mistaken failure to object to an erroneous instruction or the failure to request an appropriate instruction." (People v. Avalos (1984) 37 Cal.3d 216, 229 [207 Cal.Rptr. 549, 689 P.2d 121].) The record must show that defense counsel made a tactical decision (People v. Duncan, supra, 53 Cal.3d at p. 969; People v. Cooper, supra, 53 Cal.3d at p. 827; People v. Bunyard (1988) 45 Cal.3d 1189, 1234 [249 Cal.Rptr. 71, 756 P.2d 795]) and " 'deliberately caused the court to fail to fully instruct' " (Avalos, supra, at p. 229).
In each of the cases invoking this principle, there is clear evidence that defense counsel perceives a tactical advantage in objecting to lesser included offense instructions. For instance in People v. Duncan, supra, 53 Cal.3d 955, "counsel requested the court to give only the felony-murder instruction ... because then the prosecution would have to prove robbery and intent to kIll." (At p. 969.) In People v. Cooper, supra, 53 Cal.3d 771, defense counsel expressly stated that he abjured second degree murder instructions because he "wanted to guard against a compromise verdict." (At p. 827.) In People v. Bunyard, supra, 45 Cal.3d 1189, defense counsel agreed the defense position was " 'that it is either murder in the first degree or not at all,' " i.e., either defendant acted with express malice or he was not guilty. (At pp. 1234, 1235.)
People v. Hardy, supra, 2 Cal.4th 86 also illustrates this principle. In Hardy, defense counsel debated the jury instructions and agreed the trial court would not instruct on lesser included offenses. Counsel for one of the two defendants explained the tactical reason for his position. Under the circumstances, the Supreme Court held this attorney's failure to object to the omission of instructions on lesser included offenses constituted invited error; it was not " 'mere unconsidered acquiescence' " in the trial court's decision. (At p. 184.) The other attorney's acquiescence to the decision, in view of the previous debate, could only be considered as having been made " 'for tactical reasons and not out of ignorance or mistake.' " (Id. at pp. 184-185.)
In contrast, where defense counsel has not expressed a tactical reason, the court has held that error was not invited. (See, e.g., People v. Wickersham (1982) 32 Cal.3d 307, 333 [185 Cal.Rptr. 436, 650 P.2d 311]; People v. Mosher (1969) 1 Cal.3d 379, 393 [82 Cal.Rptr. 379, 461 P.2d 659].) As noted in Mosher, defense counsel must "express a deliberate tactical purpose in suggesting, resisting, or acceding to the erroneous instruction. [Citation.]" (Ibid.)
The danger and folly of holding that the mere failure to request an instruction on lesser included offenses is invited error are illustrated most cogently by People v. Graham (1969) 71 Cal.2d 303 [78 Cal.Rptr. 217, 455 P.2d 153]. In Graham, the court secured the agreement of the prosecutor and defense counsel that the evidence supported instruction on voluntary manslaughter but not involuntary manslaughter. (At p. 317.) In fact, the evidence did support instruction on involuntary manslaughter. (Id. at pp. 316-317.) The People argued that the error was invited. (Id. at p. 317.) The Supreme Court disagreed. Because there was no indication that defense counsel chose not to have involuntary manslaughter instructions as a matter of tactics, counsel's agreement with the court's statement did not invite the court's error. (Id. at p. 320.)
Defense counsel's failure to request involuntary manslaughter instructions after the court, at the prosecutor's request, agreed to give voluntary manslaughter instructions is more akin to a negligent or mistaken agreement that no other lesser included offense instructions are warranted than to the maintenance of a tactical choice that no longer has any value. Indeed, the record offers a clue that this may have been defense counsel's thinking. After stating it would instruct the jury on voluntary manslaughter, the court stated, "As for other lesser included offenses, the defense is not requesting any, is that right?" Defense counsel responded, "I don't think so." (Italics added.) This response reasonably may be interpreted as expressing doubt that the evidence supported instruction on any other lesser included offense.
Counsel's response cannot possibly be construed as a deliberate attempt to prevent the trial court from instructing on involuntary manslaughter. (People v. Avalos, supra, 37 Cal.3d at p. 229.) There is not a scintilla of evidence in the record to suggest that after the court agreed to give voluntary manslaughter instructions, defense counsel made a tactical decision to withhold involuntary manslaughter from the jury's consideration while allowing their consideration of voluntary manslaughter. There was no discussion of the issue and expression of a tactical decision, `a la Hardy. (People v. Hardy, supra, 2 Cal.4th at pp. 184-185.) There was not even agreement that the evidence supported instruction on voluntary manslaughter but not involuntary manslaughter, as in Graham. (People v. Graham, supra, 71 Cal.2d at p. 317.) Rather, there was " 'mere unconsidered acquiescence' " in the trial court's decision to instruct on voluntary manslaughter only. (Hardy, supra, at p. 184.)
Moreover, there is no conceivable tactical advantage in acquiescing in the trial court's decision. As discussed post, instruction on voluntary manslaughter as well as first and second degree murder left the jury with no option, if it found the killing to be unjustified but unintentional, other than to convict defendant of second degree murder. That unpalatable option could not possibly inure to defendant's benefit. Inasmuch as there is no conceivable tactical advantage, there is not even a basis for implying a deliberate tactical decision from defense counsel's silence. In my view, accordingly, the doctrine of invited error does not bar defendant from raising this claim of instructional error on appeal.
The sharp disparity in viewpoint on this issue between the majority opinion and this dissent demonstrates the potential for confusion attending this variant on the typical invited error scenario. The effect to be given defense counsel's initial tactical decision not to request lesser included offenses after the court rejects that option and instructs on one lesser offense but not another requires clarification. I urge the Supreme Court to provide guidance in this area.
The court did err in failing to instruct the jury on involuntary manslaughter. For the court's sua sponte duty of instruction to arise, there must be evidence the defendant is guilty of the lesser offense that is substantial enough for consideration by the jury. (People v. Barton, supra, 12 Cal.4th at p. 195, fn. 4.) " 'Substantial evidence' in this specific context is defined as evidence which is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable men could have concluded' " that the particular facts underlying the instruction did exist.' [Citations.]" (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139-1140 [222 Cal.Rptr. 630].)
Involuntary manslaughter is the unlawful killing of a person 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." (Pen. Code, section 192, subd. (b).) Stated otherwise, if a misdemeanor such as simple assault, battery or unlawful discharge of a firearm results in death, the homicide may be involuntary manslaughter. (See, e.g., People v. Carmen (1951) 36 Cal.2d 768, 774-776 [228 P.2d 281]; People v. McGee (1947) 31 Cal.2d 229, 238 [187 P.2d 706]; People v. McManis (1954) 122 Cal.App.2d 891, 898 [266 P.2d 134].) Similarly, if one lawfully acts in self-defense but uses excessive force, the homicide may be involuntary manslaughter. (People v. Welch (1982) 137 Cal.App.3d 834, 840 [187 Cal.Rptr. 511]; People v. Clark (1982) 130 Cal.App.3d 371, 382 [181 Cal.Rptr. 682].) By definition, involuntary manslaughter is an unintentional killing. (People v. Dixon (1995) 32 Cal.App.4th 1547, 1558, fn. 5 [38 Cal.Rptr.2d 859].)
To support a theory that one used excessive force while acting in self-defense, there must be evidence from which the jury could find "... the nature of the attack did not justify the resort to deadly force in self-defense or that the force used in self-defense exceeded that which was reasonably necessary to repel the attack. [Citations.]" (People v. Welch, supra, 137 Cal.App.3d at p. 840.) There must be some evidence of initial aggression on the part of the victim, as well as evidence the defendant was armed or armed himor herself during the altercation. (See, e.g., People v. Carmen, supra, 36 Cal.2d at pp. 771-772; Welch, supra, at pp. 837-838, 840; People v. Clark, supra, 130 Cal.App.3d at pp. 380-381, 382; People v. Landrum (1968) 261 Cal.App.2d 372, 374 [67 Cal.Rptr. 911]; People v. Alfreds (1967) 251 Cal.App.2d 666, 668-669 [59 Cal.Rptr. 647]; People v. Bross (1966) 240 Cal.App.2d 157, 163 [49 Cal.Rptr. 402]; People v. Hayes (1908) 9 Cal.App. 301, 303-304 [99 P. 386].)
One may act in self-defense when it reasonably appears there is imminent danger that one's assailant intends to commit a felony upon one's person. (Pen. Code, section 197, subd. 3; People v. Gleghorn (1987) 193 Cal.App.3d 196, 201 [238 Cal.Rptr. 82]; People v. Clark, supra, 130 Cal.App.3d at p. 377.) Even if one misapprehends the situation, if a reasonable person in the same circumstances would have perceived danger, the use of all force necessary to repel the attack is justifiable. (Ibid.; People v. Collins (1961) 189 Cal.App.2d 575, 588 [11 Cal.Rptr. 504].) Deadly force is justified only to repel an attack which is itself deadly or likely to result in great injury, however. (Clark, supra, at p. 380.) Where one has engaged in mutual combat, one must attempt to retreat, to withdraw from the combat, and communicate that intent to the other party before one has a right of self-defense, however. (Pen. Code, section 197, subd. 3; People v. Bolton (1979) 23 Cal.3d 208, 215 [152 Cal.Rptr. 141, 589 P.2d 396].)
There is evidence here that defendant and Mason engaged in mild mutual combat for a time, pushing and hitting one another. Defendant initiated this combat. At some point, however, Mason, who was unarmed, became enraged. He chased defendant through the house, shouting that he was going to hit her. Defendant ran into a bedroom and closed the door. Running away from Mason and walling herself off from him clearly signaled her intent to withdraw from the combat. This evidence was sufficient to support defendant's request for self-defense instructions.
Mason forced open the bedroom door. Defendant once again ran from him. She attempted to defend herself against this man, who was nearly 100 pounds heavier than she, by throwing a large pot of water at him. The chase continued, as did defendant's defense of throwing objects at Mason. At some point, defendant armed herself with a knife she had been using earlier to peel potatoes.1 Polidore saw defendant make a stabbing motion toward Mason, after which he charged her and she retreated into another room. A short time later, Myeshia heard someone fall. Polidore discovered that Mason had been stabbed.
The foregoing evidence would support a conclusion that "the nature of the attack did not justify the resort to deadly force in self-defense or that the force used in self-defense exceeded that which was reasonably necessary to repel the attack. [Citations.]" (People v. Welch, supra, 137 Cal.App.3d at p. 840, fn. omitted; People v. Clark, supra, 130 Cal.App.3d at p. 382.) Instruction on involuntary manslaughter thus was appropriate unless there is no evidence from which the jury could have found that defendant did not intend to kill Mason.
The force behind the wound Mason suffered, which penetrated a rib and nearly went clear through his heart, coupled with defendant's earlier stabbing motion, could support an inference that defendant intended to kill Mason. (People v. Arias (1996) 13 Cal.4th 92, 163 [51 Cal.Rptr.2d 770, 913 P.2d 980].) That inference is not compelled, however. After Polidore saw defendant make a stabbing motion toward Mason, he charged defendant and pursued her into another room. The sheer massiveness of the wound he suffered makes it highly unlikely that he would have reacted with such physicality after suffering it. It thus is logical to infer that he did not suffer the wound when defendant made the stabbing motion but suffered it after he pursued her into the other room. Other considerations support this conclusion. The knife penetrated Mason's chest to its widest point, just below the handle. Inasmuch as the knife penetrated a rib, it would have required some effort to withdraw it from his chest. Defendant did withdraw it, for she had it in her hand when she ran from the house. Polidore did not see defendant doing anything after making the stabbing motion other than immediately running from Mason into the other room, however.
In short, the most logical conclusion is that defendant turned and stabbed Mason after he pursued her into the other room, not when Polidore saw her making the stabbing motion. Inasmuch as Mason was pursuing defendant, the force with which the wound was delivered could be accounted for in significant part by his forward momentum. The force behind the wound thus says little about defendant's intent. Her spontaneous utterance says something, however. When Polidore told defendant that Mason was dead, defendant ran to the ambulance, looked inside and said, "Oh, baby, baby, I'm sorry. I'm sorry. I didn't mean to do it." These words reasonably could be interpreted as meaning defendant did not intend to kill Mason.
This interpretation of the evidence is as logical as that found in other cases. In People v. Williams (1975) 13 Cal.3d 559 [119 Cal.Rptr. 210, 531 P.2d 778], the defendant was convicted of involuntary manslaughter. After a lover's quarrel, the victim attempted to move out. The defendant told him he was not going anywhere. One witness testified he reentered the apartment in time to seethe defendant stab the victim in the chest. Two other witnesses contradicted this testimony, however, stating that the first witness had not reentered the apartment. All witnesses agreed that shortly after they heard a bumping sound, the victim staggered out, saying the defendant had stabbed him. He died. (Id. at p. 561.) According to the defendant, the victim beat her. She grabbed a knife and hit him with it. She did not intend to kill anyone. (Id. at p. 562.)
The evidence in Williams is, if anything, less compelling than the evidence in this case. Here, as in Williams, there is no reliable eyewitness to the stabbing and thus no means of assessing defendant's intent from the character of her actions. In this case, however, there is far more compelling evidence of the need for self-defense. While the defendant in Williams testified that she did not intend to kill the victim and our defendant did not testify2, our defendant's spontaneous utterance is some evidence that she lacked an intent to kIll. As in this case, the defendant in Williams admittedly committed a battery. She used force or violence upon her victim. As in Williams, therefore, "[t]he only question was whether she did so unlawfully or in lawful self-defense." (People v. Williams, supra, 13 Cal.3d at p. 564.) In short, if the evidence in Williams was sufficient to support instruction on and a verdict of involuntary manslaughter, then the evidence in this case is equally sufficient.
People v. Cameron (1994) 30 Cal.App.4th 591[36 Cal.Rptr.2d 656] also is somewhat instructive. In Cameron, the defendant and the victim quarreled, after which the victim told her to leave. They exchanged slaps. The defendant, who was very distraught, left the room. She took a knife from her purse and said she was going to stab the victim. According to the defendant, the victim threatened to beat her. They argued, after which the defendant stabbed him. (Id. at pp. 596-597.) She did not intend to stab him but only to scare him. (Id. at p. 597.) There were two stab wounds, one of which, to the left leg slightly below the groin, severed an artery and vein, causing the victim's death. The forensic expert testified that the blow, which must have been delivered with significant force to account for the depth of the wound, was inconsistent with the victim having stepped forward onto a stationary knife. (Id. at pp. 597-598.) The defendant ran away after the stabbing. (Id. at p. 598.)
The defendant in Cameron was intoxicated. The trial court had misinstructed the jury on the effect of voluntary intoxication. (People v. Cameron, supra, 30 Cal.App.4th at p. 602.) Inasmuch as voluntary intoxication can negate malice, the appellate court reasoned, were the jury to find malice negated, the offense could be involuntary manslaughter, for there was evidence the defendant did not intend to kIll. (Id. at pp. 602-605.) There was no evidence in Cameron supporting a conclusion that the defendant had a right to defend herself. She armed herself after mutual combat. Once she was armed, the victim did nothing more than threaten to beat her and argue with her; he did not attempt to attack her. Moreover, the forensic testimony clearly showed that the stabbing was intentional rather than accidental. These circumstances made negation of malice by voluntary intoxication essential to an involuntary manslaughter scenario. Here, in contrast, there is ample evidence of defendant's right to defend herself, although not necessarily with deadly force. In equal contrast, there is no evidence compelling the conclusion that the stabbing was intentional rather than unintended. The evidence that the defendant lacked an intent to kill is of roughly comparable quality. If involuntary manslaughter could be an appropriate verdict in Cameron, it could be one in this case.
Although it involves the use of a gun rather than a knife, People v. Southack (1952) 39 Cal.2d 578[248 P.2d 12] also lends some support to this conclusion. In Southack, the victim went to his former wife's parents' home, where he and his former wife argued. The defendant, who was the former wife's father, threatened several times to kill the victim if he entered the house. The defendant then opened the door and said he could shoot the victim without compunction. He did shoot and kill him. (Id. at pp. 582-583.) The defendant's 12-gauge shotgun had a " 'hair trigger.' " It had discharged accidentally earlier that day. According to the defendant, when something hit him from the side, the gun discharged. The victim's former wife testified that she had bumped into defendant. According to an expert, it was most unlikely that such a bump would cause the gun to discharge unless it was cocked and the defendant's finger was on the trigger. (Id. at pp. 583-584.)
The foregoing evidence was sufficient to support an involuntary manslaughter instruction, notwithstanding the certainty that the defendant did not act in self-defense and the great unlikelihood the gun discharged accidentally. (People v. Southack, supra, 39 Cal.2d at p. 584.) Here, in contrast, defendant clearly was acting in self-defense, albeit with excessive force, and there is no compelling evidence that an unintended stabbing was highly unlikely to have occurred. Again, if the evidence in Southack justified instruction on involuntary manslaughter, then the evidence in this case also justifies it.
In short, one reasonable interpretation of the evidence supports a conclusion that defendant did not intend to kill Mason but used more force to defend herself than she was entitled to use. Defendant thus was entitled to instructions on involuntary manslaughter.
Moreover, the error in failing to instruct the jury on involuntary manslaughter was prejudicial. The failure to instruct on a lesser included offense is reversible error if there is a reasonable probability that the defendant would have obtained a more favorable result in the absence of the error. (People v. Breverman (1998) 19 Cal.4th 142, 176-177 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
As discussed ante, the evidence supports an inference that the killing was unintentional as well as it supports the opposite inference. What the evidence does show unequivocally is that, unless she used excessive force to defend herself, defendant did " ' " 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life' " ....' [Citations.]" (People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279].) That is, she acted with implied malice, on which the jury was instructed.
The jury was given three choices: first degree murder, second degree murder and voluntary manslaughter. The first and third of these choices require an intent to kill but the second does not. Defendant was convicted of second degree murder. It thus is not clear that the jury found an intent to kIll. To the contrary, the jury could have rejected voluntary manslaughter not only because it believed the provocation inadequate but because it believed the killing was unintentional. It was not given the choice of convicting defendant of an unintentional, nonmalicious criminal homicide but only of an unintentional, malicious homicide. Were the jury convinced that defendant did not act in self-defense (thus clearly committing an unjustifiable homicide) and did not intend to kill, it would have no choice but to convict her of second degree murder. Given the reasonable interpretation of the evidence set forth ante, however, it is reasonably probable that a jury properly instructed on involuntary manslaughter would have found defendant guilty of that offense.
In summary, the trial court erred prejudicially in failing to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter. That error was not invited. Accordingly, I would reverse the judgment.