Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF120915A. Michael G. Bush, Judge.
Lascher & Lascher, Wendy C. Lascher and Eric R. Reed for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P.J.
In this rather unusual homicide case, we conclude the trial court erred in failing to instruct the jury on involuntary manslaughter and that such error was prejudicial. As a result, we will vacate the second degree murder conviction of defendant and appellant David Bruce Rosenberg. Because the issue may arise in any retrial of this case, we also will consider briefly defendant’s claims that the court erred in admitting certain evidence to which defendant objected.
Facts and Procedural History
Jinny Pearce and William Logan, both friends of defendant, broke into defendant’s storage unit in Tehachapi in September of 2007. They took several laptop computers and a small box of jewelry.
Defendant believed Pearce had participated because she was the only person who knew where his storage unit was located. He confronted her. She returned some of the items and told defendant that Logan had the rest. Defendant wanted to confront Logan in Pearce’s presence so he could resolve any conflicts in their accounts of the burglary.
On September 19, 2007, Pearce suggested they look for the rest of the stolen property at Lokey Ranch. Defendant drove Pearce’s car to Lokey Ranch with Pearce and a third person, Gwen (who is not otherwise identified in the record and did not testify at the trial), as his passengers. Defendant saw Logan near a car idling in the driveway. Defendant, armed with a.22-caliber semiautomatic handgun, got out of Pearce’s car and approached Logan as Logan got behind the wheel of the idling car. The evidence was in conflict about what happened next, but defendant admitted holding the gun, with his finger on the trigger, as he reached Logan’s car. The different accounts provided by the three trial witnesses can be summarized as follows:
Logan’s account: As defendant approached Logan, defendant was pointing the gun at Logan’s face and appeared to be upset and angry. Defendant claimed Logan had robbed him, then defendant “punched” Logan in the face with the gun, cutting the left side of his face. It was a hard blow and Logan was stunned. Logan heard nothing further until Michelle Cross, who was in the passenger seat of the car, said she had been shot; Logan did not hear a gunshot.
Pearce’s account: Defendant did not have the gun in his hand as he approached Logan. Defendant pulled the gun out as Logan sat down in the driver’s seat of the car and closed the door. As soon as defendant pulled out the gun, Logan “grabbed it” and pulled defendant into the car window opening. The gun went off, the men continued to struggle for the gun, and when defendant regained control of the gun he “smacked” Logan with it.
Defendant’s account: Defendant held a gun as he approached Logan. Logan got into the car and shut the door. Defendant, who is right-handed, transferred the gun to his left hand as he approached Logan’s car, so that his right hand would be free to open Logan’s door. Defendant, still holding the gun, held on to the window sill with his left hand as he tried to open Logan’s door with his right hand. Logan “grabs the gun and pulls the gun and the gun goes off, you know, while we are struggling for the gun.” Defendant denied he hit Logan with the gun. He saw at the time that Logan was bleeding, and he thought Logan also had been shot. After hearing the testimony at trial, defendant concluded Logan had pulled the gun into his face while trying to wrest it from defendant. “[The prosecutor:] And during that struggle, you accidentally pulled the trigger? [¶] [Defendant:] I don’t know if I -- yeah, I imagine it must have been me. My hand was on the handle..”
Cross was sitting in the passenger seat of Logan’s car when the gun discharged. The bullet struck her arm. Defendant, who said he had not seen Cross sitting in the car, offered to take Cross to the hospital and, when she declined, told Logan to do so. Defendant then left the ranch and left town. On the way, defendant threw the gun in a river. It was never recovered.
Logan, apparently under the influence of methamphetamine, moved Cross from his car to another, then ran screaming into a nearby house, yelling for someone to take Cross to the hospital. A person named Brittany (who was not further identified and did not testify) drove off with Cross and, for reasons that are unclear, ended up in the parking lot of a nearby Walgreen Drug Store. Brittany was sitting on the curb, hysterical, when Walgreen employees went out to investigate. They found Cross, called an ambulance, and attempted CPR on Cross until the ambulance arrived. Cross had died. An autopsy determined that the bullet had passed through Cross’s arm and entered her chest, hitting her heart, both lungs, and other internal organs.
Defendant was charged by information with first degree murder of Cross, with attempted kidnapping and attempted robbery special circumstances. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17).) (All further section references are to the Penal Code except as otherwise indicated.) The information alleged as an enhancement that defendant personally and intentionally discharged a firearm resulting in death. (§ 12022.53, subd. (d).) The information also alleged one count of assault with a firearm upon Logan, with a personal firearm use enhancement allegation. (§§ 245, subd. (a)(2), 12022.5, subd. (a).) On defendant’s motion, the court dismissed the robbery special circumstance.
At defendant’s jury trial, he moved in limine to exclude pursuant to Evidence Code 352 evidence that he had threatened bodily harm to Pearce and that he had participated in the original theft of the laptops Logan and Pearce took from defendant’s storage unit. The motion was denied.
Defendant requested that the court instruct the jury on involuntary manslaughter as a lesser included offense of murder. The motion was denied.
The court instructed the jury on first degree felony murder with attempted robbery and attempted kidnapping as the predicate felonies. It also instructed on attempted kidnapping as a special circumstance, implied malice second degree murder as a lesser included offense, and on the assault count and the firearm use enhancements.
The jury returned a verdict finding defendant guilty of second degree murder as a lesser included offense. The jury found defendant not guilty of first degree murder and not guilty of assault with a firearm. It also found not true the attempted kidnapping special circumstance and the firearm enhancement allegations.
Defendant’s motion for new trial was denied and he was sentenced to a term of 15 years to life in prison. He filed a timely notice of appeal.
Discussion
Additional Procedural History
The jury was instructed on second degree murder with implied malice aforethought, one of the three principal theories of second degree murder. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, §163, pp. 777-778.) The court used Judicial Council of California Criminal Jury Instructions CALCRIM No. 520 (murder with malice aforethought). That instruction, as relevant to the issues on this appeal, provides that murder with implied malice requires that the “defendant committed an act that caused the death of another person” and that he had “malice aforethought.” The instruction states that malice can be implied if the defendant “intentionally committed an act” the “natural consequences” of which “were dangerous to human life,” that he knew when he acted that the act was dangerous to human life, and that “he deliberately acted with conscious disregard for human life.”
In his argument to the jury, the prosecutor stated the following: “Ladies and gentlemen, I would submit to you that assaulting a man with a gun, punching him in the face with a gun, frankly I’d submit to you even carrying a gun around under those circumstances where you haven’t even checked it or whatever are all acts dangerous to human life.” (Defendant testified he assumed the gun was loaded because the magazine was in place, but he did not check to see if there was a round in the chamber; he testified he did not know whether the gun had a safety device.)
Prior to argument to the jury, as counsel and the court worked through the instructions to be given, defense counsel requested that the jury be instructed on involuntary manslaughter as a lesser included offense of murder. CALCRIM No. 580 (involuntary manslaughter: lesser included offense), requested by counsel, is a lengthy instruction with numerous alternative provisions. We have set forth the full instruction in the margin. For present purposes, we quote the summary portion of the instruction: “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 resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.”
CALCRIM No. 580 provides:
The court denied defendant’s request for instructions on involuntary manslaughter. (The court also denied defendant’s request for instruction on accident and misfortune, but defendant does not raise the refusal as an issue on appeal.) The court explained its involuntary manslaughter ruling: As to the first alternative posed by the instruction, that defendant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed, “felon in possession of a gun may be considered, in light most favorable to the defendant, a non-inherently dangerous felony, again we go back to what the facts are in the light most favorable to the defendant. And that would be that he was standing outside a car holding a gun and the act that discharged the weapon was what Will Logan did. And I go back to a sentence in this instruction that reads, ‘An unlawful killing resulted from a willful act committed without intent to kill.’ [¶] If you listen to the defendant’s statement, he did not do a willful act. He was standing there holding a gun. The willful act would have been done by Mr. Logan pulling the gun.”
The court stated its ruling was based on “the facts in light most favorable to the defendant. He did not do a willful act if you listen to his testimony. [¶] Now, if you accept Will Logan’s testimony or Jinny Pearce’s testimony by placing the gun into the car and pointing it at the folks in the car, well, that is an inherently dangerous felony. Therefore, it’s not involuntary manslaughter. It’s second-degree murder. And, of course, there is no misdemeanor infraction in the court’s opinion that would be used that could be used in this instruction,...”
Defense counsel responded to the court’s explanation of its ruling by stating: “I think in response to your ruling defendant did not have a willful act, I think the willful act would be the holding of the gun while you are an ex-felon while you are engaged in a dispute. And that would be the willful act that would qualify for that jury instruction.” The court replied: “Well, then that would be with conscious disregard.” Defense counsel said, “I think the jurors might decide it doesn’t go that high.” The court replied: “I don’t know that you can split that.”
The Instruction Should Have Been Given
We believe the trial court erred in several respects.
First, the trial court erred in strictly equating defendant’s own testimony with the “facts in light most favorable to the defendant.” If there is substantial evidence that the jury could believe that would permit the jury to acquit on the charged crime and convict on a lesser included offense, the court must instruct on that lesser offense, even if defendant’s own testimony does not support conviction on the lesser offense. Thus, in People v. Villanueva (2008) 169 Cal.App.4th 41, the defendant claimed that the shooting was accidental, a position inconsistent with a claim of self-defense. (Id. at p. 50.) Nevertheless, the jury was entitled to reject defendant’s version of events and accept the evidence that defendant had intentionally fired. That version of the evidence supported a finding of imperfect self-defense and, consequently, required instruction on the lesser included offense of voluntary manslaughter. (Id. at pp. 52-53; see also People v. Barton (1995) 12 Cal.4th 186, 201-202 [instruction on voluntary manslaughter required even though defendant claimed gun discharged accidentally; jury reasonably could discount self-serving testimony in light of other evidence concerning defendant’s conduct].) The court here was required to take a broader view of the entire evidence in determining whether the jury should be instructed on involuntary manslaughter.
Second, to the extent the court considered other evidence as an alternative basis for its holding, the court erred in its characterization of that evidence. The court stated that Pearce testified that defendant “plac[ed] the gun into the car and point[ed] it at the folks in the car.” In fact, Pearce testified defendant pulled the gun from his “pants or something, his back.” “[A]s soon as [Logan] saw it, he grabbed it and they started tugging, pulling it back and forth.” The prosecutor asked: “Did the defendant stick it in his face?” Pearce answered: “I don’t believe that it went that far. As soon as he saw it, [Logan] grabbed it.” While Pearce was impeached with prior statements to law enforcement officers, the jury could easily credit this portion of her testimony to conclude that defendant did not point the gun at Logan in a threatening manner before the struggle began. Logan, of course, testified that defendant pointed the gun directly into his face and then jabbed him with the gun. But the issue here is not whether the evidence could support that version of events, but whether there is substantial evidence that would support a verdict of involuntary manslaughter. We conclude Pearce’s testimony constituted such evidence.
“Substantial evidence” in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Third, even if defendant pointed the gun at Logan or at the car more generally, where there was substantial evidence that defendant did not intentionally fire the weapon, that evidence requires instruction on involuntary manslaughter. (People v. Carmen (1951) 36 Cal.2d 768, 774-775, overruled on another point in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) It is the jury, not the court, that must determine whether a defendant had the intent necessary for assault with a deadly weapon (§ 245) (a felony that would not support a verdict of involuntary manslaughter) or the defendant instead was guilty only of brandishing a firearm (§ 417) (a misdemeanor that would support conviction of involuntary manslaughter). (People v. Carmen, supra, 36 Cal.2d at p. 775; see People v. McKinzie (1986) 179 Cal.App.3d789, 794-795.)
Fourth, the court took too narrow a view of the “intentional act” requirement. Inherent in cases such as People v. Carmen, supra, 36 Cal.2d 768, is the idea that a defendant who has carried a loaded weapon into a confrontational situation has committed an intentional act sufficient to support involuntary manslaughter. The prosecutor was correct in arguing this issue to the jury and respondent does not contend on appeal there was no intentional act.
Respondent contends that the evidence conclusively establishes that, in the words of CALCRIM No. 580, the “unlawful killing [was] caused by a willful act done with full knowledge and awareness that [defendant] is endangering the life of another, and done in conscious disregard of that risk.” Respondent says there was no substantial evidence defendant acted without “conscious disregard for human life.” Respondent argues: “It is common knowledge that brandishing a loaded firearm with the safety disengaged and a finger on the trigger within close range of two other people is highly dangerous activity let alone a conscious disregard for human life.”
If respondent’s statement of the law were correct, involuntary manslaughter would not be a permissible verdict in any case involving brandishing a weapon in violation of section 417. Yet there are a multitude of cases requiring instruction on involuntary manslaughter in these circumstances. (See, e.g., 1 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against the Person, § 228, p. 839 [collecting cases].)
In this case, defendant testified he transferred the gun to his left (nonshooting) hand when he saw Logan, because he and defendant were friends and defendant did not consider Logan a threat. (Defendant testified he armed himself initially because the ranch was a known hangout for methamphetamine users and was “creepy.”) If believed, such evidence could lead a reasonable jury to conclude that defendant did not perceive his actions to be highly dangerous and that he did not consciously disregard the risk to human life. (See People v. Dellinger (1989) 49 Cal.3d 1212, 1217 [discussing requirement of defendant’s subjective knowledge of risk].) As such, there was sufficient evidence to require instruction on involuntary manslaughter.
The Failure to Instruct on Involuntary Manslaughter Was Prejudicial
Reversal is required when a trial court has erroneously failed to instruct on a lesser included offense only if, upon review of the record and the evidence as a whole, it appears reasonably probable that a properly instructed jury would have returned a verdict more favorable to defendant. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.) That there was substantial evidence to support the verdict reached by the improperly instructed jury, however, does not answer the question. The proper inquiry is whether “it appears reasonably probable the jury would … have elected the lesser [offense] if given that choice.” (Id. at p. 178, fn. 25.)
We begin our evaluation of the record with the observation that the evidence arising from Logan’s testimony was relatively weak and would be rather unlikely to persuade a reasonable jury. He testified defendant used the gun to punch him in the left side of his face. He said the blow was sufficiently hard to stun him and that he did not hear the gunshot. However, if the gun discharged as defendant punched Logan with it, it seems the bullet would have had to pass through Logan to reach Cross. It also seems unlikely that Logan would continue to struggle with defendant after receiving such a blow, which implies, contrary to all the evidence, that defendant pulled the trigger while Logan was momentarily unconscious. It is of some interest that the jury apparently rejected Logan’s testimony, since it acquitted defendant of assault with a firearm upon Logan.
Both Pearce’s and defendant’s testimony were plausible and, if either account were believed by a jury, would support an involuntary manslaughter verdict. Both testified that defendant did not use the gun in a threatening manner, in defendant’s case because he was merely holding the gun in his nonshooting hand and in Pearce’s case because Logan immediately began struggling for control of the gun. In this regard, it is of some interest that the jury found not true that defendant personally used a firearm in the commission of the murder, even though they found him guilty of murder.
There was no forensic evidence that shed light on the circumstances or that bolstered or undermined any of the eyewitness testimony. All three of the witnesses were significantly impeached, but none more so than the others.
We conclude that it is reasonably likely that a properly instructed jury would have found defendant guilty of involuntary manslaughter and would have acquitted him of second degree murder. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.)
Objections to Evidence
Over defendant’s objections under Evidence Code section 352, the court determined that certain uncharged crimes evidence was not unduly prejudicial. First, the prosecutor introduced extensive evidence that defendant threatened to cut off Pearce’s hand as punishment for stealing from him and that he “offered” to “only” shoot her in the hand if she accompanied him as he sought his property from Logan. Second, the prosecutor introduced evidence that defendant and Logan had originally stolen the property that defendant sought to recover from Logan on the day of the shooting.
We conclude that in the context of the present trial, the court did not abuse its discretion in admitting the evidence. Any retrial in this matter, however, will involve a very restricted array of charges and completely different considerations of probative value. Accordingly, our conclusions here are without prejudice to defendant’s renewal of his in limine motions upon retrial.
The present trial involved a special circumstance allegation and a felony murder charge based on the theory that defendant attempted to kidnap Logan (to force him to accompany defendant to retrieve the stolen property). The threats against Pearce were highly relevant on this issue, since the threats were alleged by the prosecutor to be the means by which defendant accomplished a similar abduction of Pearce in defendant’s search for Logan. The threats were admissible to show motive, plan, and intent. (See Evid. Code, § 1101, subd. (b).)
The prejudicial nature of this evidence was primarily inherent in the nature of the threats. The threats evoked, and apparently were intended by defendant to evoke, the regime of crime and punishment practiced in some Middle Eastern countries and generally condemned in the West. The prosecution did not, however, seek to illustrate Pearce’s testimony with photographs or videos of actual dismemberment or in some other way reach beyond a verbal recounting of the threats. Defendant admitted some version of the threats and it was relatively simple for defendant and Pearce to both, as they did, dismiss the threats as hyperbole. (See generally People v. Falsetta (1999) 21 Cal.4th 903, 916-917.) Given the strong probative value of the threats on the issues involving intent to kidnap Logan, we conclude the trial court did not abuse its discretion in admitting the evidence.
Defendant, however, was acquitted of felony murder with a kidnapping special circumstance. Accordingly, that issue will not be directly relevant on retrial and the probative value of the evidence of threats will, as a result, be different. The determination whether to exclude evidence as unduly prejudicial requires a balancing of probative value and prejudicial effect (People v. Ewoldt (1994) 7 Cal.4th 380, 404), and the trial court will have the opportunity to exercise its discretion on this issue if the prosecutor seeks to use this evidence in any retrial of this matter.
The evidence concerning defendant’s alleged participation in the original theft of the laptop computers raises similar issues. The evidence was highly probative for the prosecution’s effort to establish robbery as a predicate crime for felony murder. That is, as the trial court recognized, the prosecution was required to prove that defendant acted with felonious intent, which could be negated if defendant was merely seeking to recover his own property. (See People v. Tufunga (1999) 21 Cal.4th 935, 943.) The jury acquitted defendant of robbery-based felony murder of Cross and assault with a firearm upon Logan, however, and the issue of the ownership of the laptops may or may not be a factor in any retrial of this case. Clearly, the evidence of the noncharged theft of the laptops was prejudicial because the only evidence on this issue was Logan’s testimony and defendant’s denial. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.) In any event, the trial court will have the opportunity to exercise its discretion on this issue if the prosecutor seeks to use this evidence in any retrial of this matter.
Disposition
The judgment of conviction of second degree murder is vacated. The matter is remanded to the trial court with directions that the People may file a written election to try defendant on a charge of second degree murder within 60 days after the filing of the remittitur in the trial court and proceed to trial in accordance with Penal Code section 1382, subdivision (a)(2). If the prosecutor does not file the proper election in the specified time period, the trial court shall enter a judgment of conviction of involuntary manslaughter and sentence defendant accordingly. (See People v. Padilla (2002) 103 Cal. App.4th 675, 680.) In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, J., HILL, J.
“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 voluntary manslaughter or 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 that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence);
“AND
“2. The defendant’s acts unlawfully caused the death of another person.
“[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 [also] allege that the defendant committed the following lawful act[s] with criminal negligence: __________ <insert act[s] alleged>.]
“[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.]
“[An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.]
“[There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.]
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
“[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.]
“In order to prove murder or voluntary manslaughter, 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 and not guilty of voluntary manslaughter.”