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People v. Sandoval

California Court of Appeals, Third District, Sacramento
Mar 21, 2008
No. C052682 (Cal. Ct. App. Mar. 21, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARIO ALEXANDER SANDOVAL, Defendant and Appellant. C052682 California Court of Appeal, Third District, Sacramento March 21, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 03F07781

SIMS, J.

Defendant Mario Alexander Sandoval appeals following his conviction of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with an enhancement on the assault count for causing the victim to become comatose and suffer paralysis (§ 12022.7, subd. (b)). Defendant contends the trial court erred in failing to instruct the jury on involuntary manslaughter, and a jury instruction misled the jury into believing defendant could be convicted of voluntary manslaughter on a finding that he was criminally negligent. We shall affirm the judgment.

Undesignated statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND

After the victim of an assault died, the information charging defendant with assault was amended to add a count of voluntary manslaughter. The amended information filed in January 2006 charged defendant with (1) voluntary manslaughter of victim Jack Murphy (§ 192, subd. (a)); and (2) assault on the same victim by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)), a serious felony under section 1192.7, subd. (c)(8)). The assault charge also alleged defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)) and personally inflicted great bodily injury causing the victim to become comatose due to brain injury and to suffer paralysis (§ 12022.7, subd. (b)).

Evidence adduced at trial included the following:

On September 3, 2003, the victim (age 43) was living with his girlfriend and her 16-year-old son, Brandon. Brandon and his friend Cody (also age 16) went to a Raley’s store to steal alcohol. Brandon waited outside the store. Cody brought out a bottle of whiskey, left it with Brandon, and went back for more. Defendant, who was not known to the boys, came along with an acquaintance of the boys, David Johnson (age 20). Defendant (who was age 19 at the time) took the bottle of whiskey away from Brandon and left with it.

The boys told an older (twenty-something) friend, Randy, what had happened. Randy got mad because he did not like people “picking on little kids.” He and the boys (and a few other youths, according to some evidence) went to Johnson’s apartment. Randy carried a baseball bat (according to Johnson). The group confronted Johnson outside his apartment. Johnson testified Randy was angry about the bottle being taken from the boys and warned Johnson not to bother the boys again. Johnson testified that, even after the boys told Randy that defendant rather than Johnson took the bottle, Randy did not care and raised his bat as if to hit Johnson. Johnson’s girlfriend screamed. Randy stopped, said he would not do anything “right now,” and left with his group.

That evening, the boys accompanied the victim to a liquor store and waited outside while the victim went in to buy beer. Defendant and Johnson drove up in a car and got out. Defendant in a loud voice asked if the boys had told Randy that defendant took a bottle from them. The victim emerged from the store and told defendant to leave the boys alone. Defendant told the victim to mind his own business. A verbal argument with “fighting words” broke out between defendant (who was about five feet, five inches, and 145 pounds) and the victim (three to four inches taller and 160 pounds). The victim (age 43) was older than defendant, and the victim appeared to be a “little drunk” or at least to have ingested some alcohol. The victim said he had recently been released from Folsom prison and wanted to “squash [defendant] like a bug.” The boys crossed the street heading home, and the victim followed, walking his bicycle, still yelling at defendant. Defendant took off his shirt as he crossed the street, cursed the victim and shoved him backwards. The victim set down his bicycle. Defendant and the victim swung at each other. The victim’s swing either missed or grazed defendant, while defendant’s swing hit the victim in the face, causing him to fall backward and hit his head on the concrete. While the victim lay still, defendant punched him four or five times and kicked him in the face three or four times with his tennis shoes. Johnson restrained Brandon from interceding. Defendant and Johnson left the scene.

Witnesses observed the victim had a broken jaw, a big bump on the side of his face, and there was blood “everywhere.” The victim was unconscious and soon stopped breathing. Brandon resuscitated the victim’s breathing. The victim was admitted to the hospital with multiple facial fractures and lacerations, severe closed-head injuries, and paralysis on the right side of his body. Bleeding within his skull necessitated an operation in which part of his skull was removed. During his hospital stay, the victim contracted pneumonia, a complication arising from his injuries. Upon his discharge from the hospital, the victim’s condition had improved, but he spent the remaining months of his life in nursing facilities. He was unable to speak or swallow, was hooked up to a feeding tube, was not ambulatory, and depended on others to feed him and maintain his hygiene. On April 30, 2004, almost eight months after the attack, the victim died from pneumonia caused by complications of his brain injuries, i.e., the brain injuries left him unable to expectorate fluids from his lungs.

Defendant was arrested 10 days after the attack. He told police the dispute started when Brandon waved a bottle of whiskey in a taunting manner, so defendant took the bottle away. Defendant later heard from Johnson that a group of people including Brandon, Cody, and Randy, had come to Johnson’s home armed with a bat and threatened him. Defendant told police he “wanted to look for the kids who had been looking for me.” He found them and asked why they were looking for him with someone carrying a bat. The victim, who appeared intoxicated, intervened, called Johnson “stupid,” told defendant to leave the boys alone, crossed the street with his bike, put his bike down, and taunted defendant by calling him a “pussy” and saying defendant was afraid to fight. Defendant told police it “finally got to me,” and defendant took off his shirt, crossed the street, ducked the victim’s swing, and punched the victim twice in the face. The victim fell to the ground. Defendant said he lost his balance, fell on top on the victim, hit the victim two or three more times in the face, and then fled.

David Johnson testified for the defense that things appeared to be “cool” at the liquor store until the victim joined the conversation and talked about beating up Johnson and defendant. When things seemed to calm down, Johnson went into the store. When Johnson came out, he heard defendant and the victim still arguing and saw the victim and defendant hit each other. As defendant hit the victim a few times, the victim fell and pulled defendant down. They wrestled on the ground. The victim grabbed defendant’s jacket and tried to get him in a headlock, but defendant pulled away and, in a crouched position, hit the victim some more. Johnson denied telling an investigator that he saw defendant kick the victim. Johnson admitted defendant was his best friend.

Defendant’s older sister, who was in the car at the liquor store, testified the victim instigated the fight “a little bit,” calling defendant a “punk” and saying he was going to “kick [defendant’s] ass.” Defendant talked back to the victim because, according to defendant’s sister, “You are not going to sit there and let someone talk to you like that . . . .” Defendant took his shirt off and walked over to the victim, who “kind of gets in [defendant’s] face,” and they “square[d]-off a little bit.” The victim swung at defendant, and defendant swung back. She did not see the victim fall. Leaving the scene, defendant said he could not believe what happened.

Defendant testified at trial that he was not angry but merely stern when he confronted the boys outside the liquor store. The victim approached, said to leave the kids alone, and hurled insults at defendant. Defendant testified he was afraid of the victim, who was angry, agitated, and bigger than defendant (though the police detective testified defendant in his statement to police did not say he was afraid of the victim). Defendant testified he did not want to fight and did not believe he could win. Defendant testified the victim began to walk in defendant’s direction, and defendant took off his shirt and approached the victim. They met at a point a couple of feet from the victim’s bicycle. Defendant asked what the victim was going to do. The victim swung at defendant and hit or nearly hit defendant’s chin or shoulder. Defendant stepped back and almost immediately swung at the victim, hitting him in the jaw. Defendant hit the victim again. The victim fell back, and defendant lost his balance and fell. Defendant said the victim struggled on the ground, grabbed defendant’s shorts, and smiled in a way that increased defendant’s fear. However, defendant also testified the victim did not land any punches on defendant from the ground, and defendant was not sure if the victim was trying to hit him. Defendant hit the victim three times in the head and tried to push the victim away. Defendant stood and kicked the victim once in the shoulder. Defendant said he never meant to kill or hurt the victim. As he left the scene, defendant expressed to his companions disbelief about what happened and said he thought the victim was going to hit him more. Although a passerby testified at trial that two people kicked the victim, defendant admitted he was the only person who struck the victim.

The defense presented medical expert opinion that the victim died as a result of deficient nursing care.

The jury convicted defendant on both counts (voluntary manslaughter and assault by force likely to produce great bodily injury) and found true the enhancements (infliction of great bodily injury and causing the victim to become comatose and suffer paralysis).

The trial court sentenced defendant to three years in prison for the voluntary manslaughter conviction. The court imposed but stayed, pursuant to section 654, (1) a two-year sentence for the assault, and (2) a five-year sentence for the section 12022.7, subdivision (b), enhancement. (Although the jury found true both enhancements, only one additional term of imprisonment is allowed pursuant to section 12022.7, subd. (h).)

Defendant appeals.

DISCUSSION

I. Failure to Instruct on Involuntary Manslaughter

Defendant argues the trial court had a duty sua sponte to instruct the jury on involuntary manslaughter and improperly failed to do so despite evidence supporting involuntary manslaughter. We disagree.

We assume in defendant’s favor, as argued by defendant, that the amended information, by alleging defendant killed the victim “unlawfully and without malice,” left the door open to involuntary manslaughter (People v. Thomas (1987) 43 Cal.3d 818, 824), even though the pleading cited the statutory subdivision for voluntary manslaughter and alleged assault constituting a serious felony.

Voluntary manslaughter is defined as an “unlawful killing of a human being without malice” that occurs “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “[A] killer who acts in a sudden quarrel or heat of passion lacks malice and is therefore not guilty of murder, irrespective of the presence or absence of an intent to kill. Just as an unlawful killing with malice is murder regardless of whether there was an intent to kill, an unlawful killing without malice (because of a sudden quarrel or heat of passion) is voluntary manslaughter, regardless of whether there was an intent to kill.” (People v. Lasko (2000) 23 Cal.4th 101, 109-110.) Similarly, “when a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary manslaughter.” (People v. Blakeley (2000) 23 Cal.4th 82, 88-89; see also, People v. Rios (2000) 23 Cal.4th 450, 461, fn. 7 [explaining that California Supreme Court, by stating in Blakeley and Lasko that specific intent to kill is not a necessary element of voluntary manslaughter, meant only to make clear that voluntary manslaughter, but no lesser offense, is also committed when one kills unlawfully and with conscious disregard for life, but lacks malice because of provocation or imperfect self-defense].)

In contrast, section 192 states that involuntary manslaughter is a killing without malice that occurs “in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Involuntary manslaughter is not a lesser included offense of voluntary manslaughter. (People v. Orr (1994) 22 Cal.App.4th 780, 784.)

The People cite our opinion in People v. Rhodes (1989) 215 Cal.App.3d 470 at pages 475 through 476 (disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 198, fn. 7) for the proposition that a felonious assault does not fall within the definition of involuntary manslaughter. Defendant’s reply brief observes that Rhodes was published through clerical error despite a grant of rehearing and subsequent unpublished opinion, as stated in People v. Cameron (1994) 30 Cal.App.4th 591 at pages 602 (Reporter’s Note in majority opinion) and 606 (concurring opinion of Davis, J.). Nevertheless, the People cite Rhodes merely for the unremarkable proposition that since the unlawful act of felonious assault is a felony, it does not fall within the statutory definition of involuntary manslaughter in section 192, which expressly excludes felonious acts. Defendant cites our decision in Cameron, supra, 30 Cal.App.4th 591, for the proposition that section 192 is not the exclusive measure of involuntary manslaughter. In that case where an argument led to a stabbing death, we reversed a second degree murder conviction due to an erroneous instruction implying voluntary intoxication had no bearing on implied malice, and we reduced the conviction to involuntary manslaughter unless the People elected to retry the defendant. (Id. at pp. 603-605.) We noted voluntary manslaughter required an intent to kill. (Id. at p. 604.)

However, the California Supreme Court more recently concluded that intent to kill is not a necessary element of voluntary manslaughter. “[A] killer who acts in a sudden quarrel or heat of passion lacks malice and is therefore not guilty of murder, irrespective of the presence or absence of an intent to kill. Just as an unlawful killing with malice is murder regardless of whether there was an intent to kill, an unlawful killing without malice (because of a sudden quarrel or heat of passion) is voluntary manslaughter, regardless of whether there was an intent to kill. In short, the presence or absence of an intent to kill is not dispositive of whether the crime committed is murder or the lesser offense of voluntary manslaughter.” (People v. Lasko, supra, 23 Cal.4th at pp. 109-110.) Similarly, “when a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary manslaughter.” (Blakeley, supra, 23 Cal.4th 82, 88-91.)

The trial court in criminal cases has a duty sua sponte to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Edwards (1985) 39 Cal.3d 107, 117.)

However, the trial court is not obligated to instruct sua sponte on theories unsupported or only weakly supported by the evidence. (People v. Reeves (2001) 91 Cal.App.4th 14, 51.) The trial court is not obligated to instruct sua sponte on involuntary manslaughter unless there is substantial evidence of its elements. (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Defendant fails to show substantial evidence of an unlawful act not amounting to a felony or a lawful act committed in an unlawful or criminally negligent manner. He simply says that he testified he never intended to kill or injure the victim when they fought, and that this testimony alone provided substantial evidence of involuntary manslaughter, because a jury could infer that defendant acted with nothing more than an unconscious disregard for life, i.e., criminal negligence, when he struck the victim. Defendant cites authority that a defendant’s testimony constitutes substantial evidence even if it does not inspire confidence. (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1446.)

However, the cited authority is distinguishable. The trial court in Mejia-Lenares, supra, 135 Cal.App.4th 1437, instructed on imperfect self-defense in a murder case based on the defendant’s testimony that he believed the victim was the devil, which the defendant acknowledged was a delusion. (Id. at p. 1447.) The issue on appeal was whether a belief of imminent danger founded upon delusion alone can support a claim of imperfect self-defense. (Ibid.) The appellate court answered “no” and affirmed the judgment. Thus, Mejia-Lenares does not help defendant here.

The trial court is not required to instruct on involuntary manslaughter where the defendant’s self-serving statements denying intent to kill or injure are deemed insubstantial in character. (People v. Evers (1992) 10 Cal.App.4th 588, 597-598.) That is the case here.

Defendant’s self-serving statements denying intent to injure the victim and denying awareness of the risk are rendered insubstantial by the evidence that defendant (who was not shown to be operating under any mental defect) punched and kicked the victim so severely that he lost consciousness, and witnesses observed there was blood “everywhere,” and the victim’s jaw was visibly broken. The victim was admitted to the hospital with multiple facial fractures and lacerations. Defendant’s continued beating of the victim after he fell to the ground renders insubstantial defendant’s self-serving claim that he had no intent to injure the victim and was unaware of the risk. Although defendant and his friend suggested that the victim continued fighting after he fell to the ground, defendant admitted at trial that he did not receive any blows after the victim fell to the ground, and defendant was not sure if the victim was even trying to hit him.

The evidence was insufficient to support an instruction on involuntary manslaughter. That the victim was taller and heavier than defendant does not change our conclusion. The disparity was not great, in that the victim was only a few inches taller and about 15 pounds heavier than defendant. Moreover, defendant at age 19 had the advantage of youth, being younger than the victim’s age of 43. We are not persuaded by defendant’s reference to evidence that he had never been in a fight other than one time in high school, he had no training in boxing or martial arts, and he did not think he could defeat the victim.

This case clearly falls outside of the realm of involuntary manslaughter. A defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary, rather than voluntary, manslaughter, but not if the killing took place with conscious disregard for life. (Blakeley, supra, 23 Cal.4th at pp. 88-91.) “[W]hen a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary manslaughter.” (Id. at pp. 88-89.)

Here, during deliberations the jury asked for further instruction on the voluntary manslaughter element that defendant “knew” his conduct was dangerous to human life. In response to the jury’s request for examples, the court responded it was reluctant to give examples from other cases. In response to the jury’s question whether “dangerous to human life” has a legal definition, the court responded the phrase “should be applied in its ordinary sense. Jurors are entitled to use their common sense and experience. However, if it is helpful, the concept may be paraphrased as follows: An act is dangerous to human life when there is a high probability that it will result in death. The risk of death cannot be expressed in statistical terms such as more than 50%. An act may have a high probability that it will result in death even though death may not result in a majority or even a great percentage of instances. An act that is dangerous to human life is one that cannot be committed without creating a substantial risk that someone will be killed. The particular determination of whether an act or acts are dangerous to human life in this case is for you to decide.”

The jury later asked the court whether “knew” meant knowledge acquired through total life experience or knowledge that defendant had on his mind during the act. The trial court responded: “The word ‘knew’ refers to an actual awareness by the defendant that his act or acts were dangerous to human life. Such knowledge by the defendant can be established by direct or circumstantial evidence and can include knowledge he acquired through his life experience as well as during the commission of the alleged offense. The prosecution must establish beyond a reasonable doubt that the defendant actually knew his act or acts were dangerous to human life. In determining whether the defendant had that knowledge, the jury may consider the defendant’s age, background, and experience, the nature of the conduct, as well as the circumstances under which the act or acts occurred. [¶] The jury must determine what physical act or acts occurred. In the context of this case, the jury must determine, among other things, what blows defendant Sandoval struck, where they were struck, the force used, and the condition of Mr. Murphy at the time they were struck. Then, as outlined above, the jury must also determine the defendant’s mental state at the time the blows were struck. [¶] Nothing in this supplemental instruction is intended to conflict with any of the instructions previously given or to influence your verdict in any way.”

Thus, in order to convict of voluntary manslaughter, the jury had to find that defendant, at the time he struck the blows, was actually aware that his conduct was dangerous to human life.

Defendant cites the opinion of this court in People v. Bross (1966) 240 Cal.App.2d 157, where a woman embroiled in a dispute with a neighbor testified she fired a shotgun at the ground when the neighbor began shooting at her husband. The neighbor died of gunshot wounds. We reversed the voluntary manslaughter conviction due to absence of a jury instruction on involuntary manslaughter. We said it has been held repeatedly that a killing resulting from the negligent use of firearms is involuntary manslaughter. (Id. at p. 170.) Thus, Bross is distinguishable. The case now before us involves multiple blows by defendant’s fists and feet, not a firearm which may be negligently discharged in a split second. There is no evidence the killing in this case stemmed from mere negligence.

Defendant cites People v. Jackson (1962) 202 Cal.App.2d 179, which rejected a defendant’s argument that his conduct (knocking the victim to the ground and bumping the victim’s head on the pavement four or five times) did not support a manslaughter conviction. (Id. at p. 181.) The victim was able to get up and go about his business but died later that day of a subdural hemorrhage. (Ibid.) The appellate court described the defendant’s conduct as an unlawful act not amounting to a felony and said it amounted to involuntary manslaughter. (Id. at p. 183.) However, Jackson, supra, 202 Cal.App.2d at page 182, also said there was no distinction between voluntary and involuntary manslaughter, and if a killing is manslaughter, it does not matter whether it is voluntary or involuntary (a point disapproved by other courts, as stated in People v. McManis (1972) 26 Cal.App.3d 608, 614-615, questioned on other grounds in People v. Cox (2000) 23 Cal.4th 665, 672, fn. 3). Moreover, the California Supreme Court, in rejecting a defendant’s reliance on Jackson in a contention that the trial court erred in failing to instruct on voluntary and involuntary manslaughter, cited the statutory definition of involuntary manslaughter and distinguished Jackson as a case involving misdemeanor assault or battery where the act was of a less serious nature than that which would constitute a felony. (People v. Benavides (2005) 35 Cal.4th 69, 102-103.) Here, unlike Jackson, we cannot say that defendant’s conduct was an unlawful act not amounting to a felony, because the jury (which received instruction on both assault with force likely to produce great bodily injury, which the court called “felony assault,” and simple assault as a lesser offense) found defendant guilty of the greater offense of felony assault.

We conclude the trial court did not err in failing to instruct sua sponte on involuntary manslaughter. Accordingly, we need not address defendant’s argument that the claimed error violated the federal and state Constitutions and prejudiced defendant. We nevertheless observe that, even assuming error, it was harmless beyond a reasonable doubt, because the jury also found defendant guilty of assault with force likely to cause great bodily injury (a serious felony) rather than the simple assault upon which the jury was instructed as a lesser offense. The jury could not have found defendant guilty of the felonious assault unless it found, pursuant to the jury instructions, that defendant did not act in self-defense and that he willfully did an act that by its nature would directly and probably result in the application of force to a person, and defendant “was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone . . . .” As indicated, section 192 specifies that, in order to qualify for involuntary manslaughter, the unlawful act cannot be a felony. Here, defendant committed an unlawful act which was a felony, as reflected in the guilty verdict on the felony assault alleged in count two.

Defendant was not entitled to instruction on involuntary manslaughter.

II. CALCRIM No. 511

Defendant contends CALCRIM No. 511 misled the jurors into believing he could be convicted of voluntary manslaughter even if he was only criminally negligent. We shall conclude that, even assuming the issue is preserved for appeal, defendant fails to meet his burden to show a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36.)

The trial court instructed the jury, pursuant to CALCRIM No. 511, as follows:

“The defendant is not guilty of voluntary manslaughter if he killed someone by accident while acting in the heat of passion. Such a killing is excused, and therefore not unlawful, if, at the time of the killing:

“1. The defendant acted in the heat of passion;

“2. The defendant was suddenly provoked by Jack Murphy or suddenly drawn into combat by Mr. Murphy;

“3. The defendant did not take undue advantage of Mr. Murphy;

“4. The defendant did not use a dangerous weapon;

“5. The defendant did not kill Mr. Murphy in a cruel or unusual way;

“6. The defendant did not intend to kill Mr. Murphy and did not act with conscious disregard of the danger to human life;

“AND

“7. The defendant did not act with criminal negligence. [Italics added.]

“A person acts in the heat of passion when he or she is provoked into doing a rash act under the influence of intense emotion that obscures his or her reasoning or judgment. The provocation must be sufficient to have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.

“Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

“In order for the killing to be excused on this basis, the defendant must have acted under the direct and immediate influence of provocation as [the court had] defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

“It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.

“Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

“1. He acts in a 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 acts is so different from how 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.” (Italics omitted.)

Defendant argues this instruction misled the jury into concluding that, if defendant acted with mere criminal negligence (not conscious disregard) under the specified circumstances, he could be convicted of voluntary manslaughter -- an erroneous conclusion because a conviction of voluntary manslaughter cannot stem from criminal negligence. Defendant notes criminal negligence and conscious disregard for life are distinct legal concepts.

However, the trial court also instructed the jurors (pursuant to CALCRIM No. 572) that they could not find defendant guilty of voluntary manslaughter unless they found that “[a]t the time [defendant] acted, he knew the act was dangerous to human life;” and “[h]e deliberately acted with conscious disregard for human life . . . .”

The trial court instructed the jury: “To prove that the defendant is guilty of Voluntary Manslaughter as charged in Count One, the People must prove that: [¶] 1. The defendant intentionally committed an act that caused the death of another person; [¶] 2. The natural consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew the act was dangerous to human life; [¶] 4. He deliberately acted with conscious disregard for human life; [¶] AND [¶] 5. He killed without lawful excuse or justification. “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.” (Italics omitted.)

The prosecutor argued to the jury that defendant acted with a conscious disregard for life.

Defendant complains the trial court did not define “conscious disregard for life” for the jury, nor did the court explain how this mental state differs from criminal negligence. Defendant argues the two concepts would appear similar to a lay person. Defendant argues that, since the jury was not given an element-related reason that explained the underlying purpose of the criminal negligence instruction, the jury was left to conclude that the two instructions were equivalent. We disagree.

As noted by defendant, culpability based on criminal negligence requires proof of aggravated, culpable, gross, or reckless conduct which is such a departure from conduct of an ordinarily prudent person under the same circumstances as to demonstrate an indifference to consequences or a disregard of human life. (People v. Lara (1996) 44 Cal.App.4th 102, 108.) However, such conduct does not reach the level of conscious disregard for life, a state of mind that contains a subjective knowledge of the risk to life plus a willingness to act despite awareness of the risk. (Ibid.) A defendant may be found to have acted with criminal negligence without proof that he intended to commit the act. (Ibid.)

To the extent that defendant argues the trial court should have defined “conscious disregard” for the jury and/or explained the difference between conscious disregard and criminal negligence, the contention is forfeited by defendant’s failure to request such clarifying instructions. (People v. Johnson (1993) 6 Cal.4th 1, 53 [defendant who believes instructions are ambiguous or contradictory is required to object and request clarifying language].) A reasonable juror would understand “conscious disregard for human life” to require a finding that the defendant had subjective awareness of the life-threatening risk of his conduct. (People v. White (1995) 35 Cal.App.4th 758, 770.) If defendant wanted further instruction, he was required to ask for it, which he did not do.

Moreover, to the extent defendant claims the instructions misled the jury, he fails to support his claim. He argues the jury was led to believe that if defendant acted with criminal negligence, he could be convicted of voluntary manslaughter even though such a mental state is applicable only to involuntary manslaughter, an offense the jury never had the opportunity to consider. However, we review the instructions as a whole. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.) The instructions as a whole did not allow the jury to convict of voluntary manslaughter based on criminal negligence. Rather, the instructions told the jury that the killing was excused if criminal negligence was absent (in the specified circumstances). The instructions as a whole still required the jury to find defendant knew his conduct was dangerous to human life and deliberately acted with conscious disregard of this risk. Additionally, as indicated ante, the court gave further instruction upon the jury’s request regarding the requirement that defendant must have known his act was dangerous to human life.

Defendant cites People v. Lara, supra, 44 Cal.App.4th 102, which found reversible error where the jury was instructed it could find the defendant guilty of battery (a general intent crime) if there existed a union of “conduct and criminal negligence.” (Id. at p. 106.) No such erroneous instruction was given in this case.

Defendant fails to show a likelihood that the instructions misled the jury. He cites a letter sent to the trial court by juror number 9, asking for leniency in sentencing. Defendant suggests the juror said he believed defendant’s testimony that he did not realize how hard he hit the victim. However, what the juror said was that he believed “the majority” of defendant’s testimony was truthful but also believed defendant did “bend the truth” somewhat and created this tragedy by making bad decisions. The juror was impressed that defendant admitted he was the only one who hit the victim instead of trying to take advantage of the testimony of the passerby who said two people kicked the victim (testimony which the juror believed was mistaken). The juror stood by the verdict but urged leniency in sentencing because he felt defendant had learned from his mistakes and would be victimized in prison. Nothing in the juror’s letter supports defendant’s assertion that the instructions misled the juror.

Still under the heading of instructional error, defendant raises a distinct claim of prosecutorial misconduct. We could disregard this claim for failure to brief it properly. (Cal. Rules of Court, rule 8.204 [brief must state each point under a separate heading or subheading].) We shall nevertheless address it.

Thus, defendant argues the prosecutor encouraged the jurors to think the two standards -- criminal negligence and conscious disregard -- were the same, by telling the jury in closing argument:

“There is also a form of voluntary manslaughter that you don’t mean to kill him at all, you just engage in conduct that is dangerous. It’s kind of like the guy on the overhang of the freeway. All he wants to do is shoot hood ornaments, but he is not as good a shot as he thinks he is. He misses and hits the windshield and somebody gets killed. He doesn’t try to kill anybody. [¶] That is voluntary manslaughter and he knew it because he is engaged in such dangerous conduct; but even though he didn’t intend to kill anybody, the law says that you are going to be held responsible for that. [¶] We submit that it is cruel. Kicking a dog is cruel when they are down. He did much more than that to a human being. [¶] Conscious disregard, danger to human life? Absolutely.

“Also, did he act with criminal negligence? Criminal negligence, there is a definition for that. Again, that is a term of art. Essentially what that equates to, high risk of bodily injury or death. [¶] Also, you will notice at the top I put in parentheses 511. That refers to the jury instruction in your packet, the Cal Crim instruction. He acted in negligence, gross negligence [italics added] and I will talk about that. This was extremely aggravated conduct. [¶] We submit to you that the evidence establishes that he is not entitled to this. This isn’t a situation where somebody comes home and they find a neighbor in their daughter’s bedroom molesting their child, their daughter, and they see their daughter being molested by someone and all of a sudden they just snap, (snaps fingers). [¶] That is something in a heat of passion. That is something when you are getting provoked. That is something that will get any ordinary person worked up. You don’t get to go get a gun and simply kill him but it’s worth whacking that person a few times. That’s not anything like what’s going on here.”

Defendant’s appellate brief stops the quote after the italicized language: “He acted in negligence, gross negligence and I will talk about that.” However, contrary to defendant’s claim that the prosecutor thus argued that defendant acted with negligence, it is clear in context that the prosecutor was merely quoting from CALCRIM No. 511 and then went on to say defendant did not act with mere negligence.

Thus, defendant misrepresents the prosecutor’s remarks to the jury.

In any event, defendant has forfeited any challenge to the prosecutor’s remarks by failing to make an objection and request an admonition in the trial court. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1006-1007.)

We conclude defendant fails to show grounds for reversal of the judgment.

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND, P.J., ROBIE, J.


Summaries of

People v. Sandoval

California Court of Appeals, Third District, Sacramento
Mar 21, 2008
No. C052682 (Cal. Ct. App. Mar. 21, 2008)
Case details for

People v. Sandoval

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARIO ALEXANDER SANDOVAL…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 21, 2008

Citations

No. C052682 (Cal. Ct. App. Mar. 21, 2008)