From Casetext: Smarter Legal Research

People v. Smith

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 6, 2012
No. F060859 (Cal. Ct. App. Feb. 6, 2012)

Opinion

F060859

02-06-2012

THE PEOPLE, Plaintiff and Respondent, v. THOMAS CRENSHAW SMITH, Defendant and Appellant.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Kern Super. Ct. No. BF128847A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant/defendant Thomas Crenshaw Smith shot and killed his adult son after a brief argument at their house, during which defendant held a gun to his head and threatened to kill himself, fired one shot into the ceiling, and then fired the fatal shot into his son's chest. Defendant called 911 for help, and said he shot his son in a "fury and rage" because his son was "egging" him on. At trial, defendant claimed the shooting was an accident.

Defendant was charged with first degree murder (Pen. Code, § 187, subd. (a)), with the special allegations that he personally used a firearm (§ 12022.5, subd. (a)) and he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)).

All further statutory citations are to the Penal Code unless otherwise indicated.

After a lengthy jury trial, defendant was found not guilty of first and second degree murder, and guilty of the lesser offense of voluntary manslaughter. The jury found both firearm allegations to be true. Defendant was sentenced to an aggregate term of nine years in state prison, based on the midterm of six years for voluntary manslaughter and three years for the section 12022.5, subdivision (a) firearm allegation.

While the jury found both special allegations true, the trial court correctly noted that it could not impose an additional term based on section 12022.53, subdivision (d), since that special allegation is statutorily inapplicable to a conviction for voluntary manslaughter. (See, e.g., People v. Villanueva (2011) 196 Cal.App.4th 411, 417, fn. 6; § 12022.53, subd. (a).)

On appeal, defendant contends the jury was not properly instructed on criminal negligence as required for involuntary manslaughter, and the alleged instructional error was prejudicial. We will affirm.

FACTS

Defendant and his wife, Victoria Smith (Victoria), had been married for almost 32 years and lived in Bakersfield. Defendant had a concealed weapons permit and kept four or five guns in the house. Defendant stored the weapons and ammunition in safes except for one handgun, which he kept on top of a closet shelf in the master bedroom for protection in case of burglaries. Defendant occasionally went target shooting at a practice range, and regularly complied with the requirements to renew his concealed weapons permit. Victoria testified defendant never had an accident with any of his weapons in the house. She had never seen defendant act irresponsibly with a gun.

Given the common last names, we refer to some of the parties by their first name for ease of reference; no disrespect is intended.

In 2008, Josh Smith (Josh), the adult son of defendant and Victoria, was in a motorcycle accident and suffered a broken back. In February 2009, Josh and his three-year old son moved in with defendant and his wife. Josh was on disability, he was not working, and he had to take pain medication to deal with his back injury.

On July 24, 2009, Josh had back surgery and he was very pleased with the results. Josh believed he was going to recover and would not have to take pain medication anymore. Defendant and Josh planned to go on a hunting trip later in summer, after Josh recovered from his back surgery. Both defendant and Josh were excited about the trip. Josh referred to defendant as his hero. The argument

On the afternoon of July 30, 2009, defendant, Victoria, and Josh were at home and in the family room. Josh and defendant were discussing Josh's recent back surgery. Defendant had also suffered from back problems and taken pain medication for many years, but he had continued to work during that time. On this occasion, Josh told defendant that he should also have back surgery because it might help defendant, and he would not have to take so much pain medication.

Victoria testified that Josh was trying to be helpful but defendant was offended. Defendant said he had worked with pain for 50 years and it was just part of his life. Victoria testified that Josh "took offense" that defendant was putting him down since Josh was on disability. Josh made a nasty remark about defendant's children moving away from him, and defendant became upset. Victoria testified "they were kind of putting each other down" and saying hurtful things to each other. Victoria testified that defendant got up, walked out of the family room, and turned into the hallway that led to the bedrooms. She thought defendant was going to the master bedroom to stay by himself. Victoria and Josh remained in the family room, and Victoria told Josh to calm down. Defendant produces the gun

Victoria testified that she and Josh were still in the family room when they heard a pop. They did not know the source of the sound. Victoria and Josh went into the hallway to investigate. There was a hole in the ceiling near the top of a bedroom doorway. Defendant was standing in the hallway and he was holding a gun to his head. Defendant told Josh to "pull the trigger." Josh said, "[N]o, dad, I can't, I love you."

Victoria was in shock when she saw defendant with the gun. She was afraid he was going to commit suicide. Victoria knew defendant had been depressed because of his back pain and "life in general." Either Victoria or Josh told defendant to put away the gun because his young grandson was in the other bedroom. Victoria recognized the gun as the weapon which defendant kept in the master bedroom closet. The fatal shot

Victoria testified defendant and Josh were facing each other in the hallway, and they were about a foot and a half apart. Josh was about two feet in front of Victoria. Defendant turned to walk away and "started down the hall," and Victoria thought he was going to the master bedroom. Josh turned to his left and headed toward the bathroom, located on the left side of the hallway.

Victoria testified that she heard a gunshot, looked at Josh, and realized he had been shot. Josh collapsed to the floor. Josh was wounded on the right side of his chest. While defendant fired the shot, Victoria was not looking at him when the shot was fired, and she did not see him fire the weapon. Victoria thought that just a few seconds passed from when she was in the family room and heard the first pop, to when defendant shot Josh. Defendant's call to the 911 operator

Victoria held Josh in her arms and shouted at defendant to call 911. Defendant went into the master bedroom to use the telephone, and he was still holding the gun.

Defendant called 911, and the tape-recording of the call was introduced into evidence and played for the jury. Defendant told the 911 operator that he had an emergency call for "gun shots fired to the chest of my twenty-six year old son ...." The operator asked defendant who shot his son. Defendant said he couldn't hear and told someone to stop yelling.

Defendant told the operator that his son had been "wounded mortally" and "I shot him." The operator replied, "You shot him?" Defendant repeated, "I shot my son." Defendant told the operator to send someone to the house. The operator assured him that someone was on the way. Defendant said he was calling from the bedroom bathroom because everyone was yelling. Defendant said the gun was lying on his bed.

"911: . Was it an accident, Thomas?
"[Defendant]: It was an argument. It was an argument over ... over who's who and who's boss and ..
"911: It was an argument?
"[Defendant]: And, yeah he had just had back op . op . back operation and . and he was real . big real argument . just was fights about everything.
"911: Okay. Okay, and . and then did you already have the gun in your house? It was already there and ..
"[Defendant]: It was already there. It was already loaded and put away in the closet.
"911: Okay, and you . did you feel like you were maybe in danger then?
"[Defendant]: I what?
"911: Did you feel like you were in danger ..
"[Defendant]: No.
"911: with your ... with your son?
"[Defendant]: I was mad.
"911: You ... you were mad?
"[Defendant]: Yes."
Defendant identified himself and his son, and then offered more details:
"[Defendant]: I went into the closet, got the gun.
"911: Mm-mm.
"[Defendant]: [C]ame out of the closet, shot at him, he responded smart-alecky, I shot at him.
"911: Mm-mm.
"[Defendant]: [I]n fury and rage.
"911: Mm-kay.
"[Defendant]: Rage."

Defendant said he shot his son in "the higher chest" and his wife was trying to stop the bleeding. Defendant repeatedly told the operator to send help. The operator instructed defendant to stay on the telephone so the responding deputies would know that it was safe for them to enter the house and that defendant would not shoot at them. Defendant said he understood.

"911: [H]ow many shots did you shoot off ...?
"[Defendant]: One into the ceiling ... one at him.
"911: Okay. So, you ... he ... he was just hit once?
"[Defendant]: He was just egg ... he's egg ... egging me on ... egging me and screaming at me."

Defendant told the operator that he called 911 "the minute I put the gun down." Defendant said he used a Smith and Wesson pistol.

The 911 call ended when deputies and emergency personnel arrived at the house. The emergency personnel transported Josh to Kern Medical Center. Statements given at the house

Detective Lloyd Waters arrived at defendant's house. He knew that shots had been fired from that house and he was concerned about public safety in the residential area. Waters asked defendant how many rounds had been fired. Defendant said he fired one round upward, through a door that was down the hallway, and he fired a round at his son.

Detective Adrian Olmos interviewed Victoria at the house, and asked her what happened. At the time of the interview, defendant was sitting next to a deputy in the family room. Victoria was crying and emotional, and Josh had been taken to the hospital and his condition was unknown.

Victoria's initial statement to Detective Olmos was somewhat different from her subsequent trial testimony. Victoria said that Josh and defendant argued in the family room, and defendant walked out. Victoria told Josh to check on his young son, who was playing in one of the bedrooms. Josh walked out of the family room, and Victoria heard him tell defendant to "put it away," referring to a gun that defendant was holding. Victoria said that defendant was holding the gun to his head, and he told Josh to pull the trigger for him. Josh replied, "[D]ad, what are you talking about, stop it, go put that up." Victoria said defendant had talked about suicide in the past. Victoria said defendant fired a round into the ceiling, and then he went into the master bedroom. Victoria said she was standing behind Josh and almost fainted when defendant fired into the ceiling.

Victoria said she told defendant to put the gun away, and she thought he was going to do so. Josh reminded defendant that his young grandson was in the next bedroom. Victoria said defendant walked out of the master bedroom and shot Josh in the chest. Josh's fatal wound

Josh was treated at Kern Medical Center, but he died from the single gunshot wound to the upper right chest, near the collar bone. The bullet passed from front to back, slightly downward, and right to left. It went through the large blood vessels, the lung, and the subclavian artery, and then lodged near his spine. The bullet caused extensive internal bleeding and tissue damage. The pathologist discovered powder stippling on Josh's body, which indicated the weapon had been fired from an intermediate range of between 12 to 18 inches away. The pathologist recovered the bullet from Josh's body. Forensic evidence

A deputy recovered the weapon which defendant had used, a Smith & Wesson .40- caliber pistol. It was loaded with live rounds in the magazine, and one live round in the chamber. Ballistics tests confirmed the fatal gunshot was fired from that weapon.

Defendant's house was later searched pursuant to a warrant, and the officers recovered two spent shell casings at different locations on the hallway floor. There was one live .40-caliber round on the floor of the master bedroom and a holster on the bed. There were several weapons and multiple rounds of ammunition found in the safes located in the house. There was a bullet hole through the top of a bedroom door, and powder stippling on the door itself, indicating that the shot had been fired at close-range to the door.

A criminalist testified that defendant's weapon functioned as both a double and single action pistol. The first shot would have required nine pounds of force to pull the trigger. The second and subsequent shots would have required less pressure— approximately five pounds—to pull the trigger. In contrast, a "hair trigger" only required less than two pounds of pressure to the trigger.

DEFENSE EVIDENCE

A firearms expert testified defendant's weapon was a "traditional action" pistol, and it was capable of being fired as both a single and double action weapon. He agreed that the first shot would have required about nine pounds of pressure, and the second shot would have required five and a half pounds of pressure. However, he testified that in a stressful situation, it would be very easy for someone to fire the second shot.

Defendant testified at trial and claimed he accidentally shot Josh. Defendant said he had been upset at Josh for using foul language with Victoria. Josh accused defendant of being a dope addict because he used pain pills. Josh told defendant he should have back surgery, but he did so in a "surly" way. They argued, and Josh claimed all of defendant's children hated him and moved away. Josh went into his own bedroom.

Defendant said he felt upset, depressed, and suicidal because of Josh's behavior and their argument. Defendant went into the master bedroom to retrieve his gun from the top shelf of his closet. Defendant was considering whether to shoot himself. His gun was already loaded, and he racked the slide to make sure it was loaded. Defendant was shaking and nervous. Defendant went back into the hallway to get Josh's attention. He held the gun to his head, and told Josh to pull the trigger because he could not do it himself and he knew Josh wanted to get rid of him. Defendant wanted to make Josh feel guilty. Josh refused and said he loved defendant.

Defendant testified Josh went into his own bedroom and closed the door. Out of anger and frustration, defendant fired into the ceiling by the doorjamb of Josh's closed bedroom door. Victoria was in the hallway when he fired. In response to the gunshot, Josh "yanked" open the bedroom door and "startled" defendant. Defendant was lowering his hand from aiming the gun at the ceiling, and his hand was still shaking. Defendant testified he was "startled" by Josh's reappearance through the door, and "the gun went off and shot my son."

Defendant testified it was a complete and total accident, and he did not intend to shoot Josh. "I didn't even feel the trigger. I barely heard the boom. And I saw the bullet enter my son's chest and blood spurt out." Josh collapsed, Victoria tried to help him, and defendant immediately called 911 for help.

Defendant said he was in shock when he spoke to the 911 operator. Defendant admitted that he made the statements to the 911 operator heard on the audiotape, that he was mad and shot Josh in a fury and rage. Defendant never told the operator that he was startled or the shooting was an accident. Defendant testified he was frustrated with the operator's questions, and he just wanted the operator to send help. Defendant testified he did not shoot Josh out of fury and rage, and did not intend to shoot or kill him. Defendant had argued with Josh on prior occasions and never tried to shoot or hurt him.

Defendant claimed he was not that familiar with firearms. On cross-examination, however, he admitted he had several weapons, he fired the Smith & Wesson handgun many times at a target range, and he was familiar with the weapon. He knew it was both a double and single action pistol-the first trigger pull required more pressure, and the second and subsequent shots were very easy and light. Defendant further admitted he had a concealed weapons permit since 1983, took multiple courses on firearm safety, and spent more than $7,000 on weapons and ammunition at a gun shop over the past seven years.

DISCUSSION

On appeal, defendant argues the court had a sua sponte duty to instruct on CALJIC No. 3.35, concurrence of act and criminal negligence for involuntary manslaughter. Defendant contends the court's failure to give this instruction was prejudicial and prevented the jury from considering his guilt for involuntary manslaughter as a lesser included offense. A. Instructions

The jury in this case received CALJIC rather than CALCRIM instructions.

The court conducted the instructional conference in chambers and off the record. Thereafter, the court instructed the jury on the charged offense of first degree murder, and the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter.

As to involuntary manslaughter, the jury was instructed that every person who unlawfully kills without malice aforethought and without the intent to kill and without conscious disregard for human life is guilty of that offense. The jury was instructed on both the dangerous acts and misdemeanor manslaughter theories of involuntary manslaughter. "The commission of an unlawful act without due caution and circumspection would necessarily be an act that was dangerous to human life in its commission."

"The term 'without due caution and circumspection' refers to a negligent act which is aggravated, reckless and flagrant and which is such a departure from what would be the conduct of an ordinarily prudent careful person under the same circumstances as to be in disregard for human life or an indifference to the consequences of such act. The facts must be such that the consequences of the negligent act could reasonably have been foreseen. [¶ ] It must also appear that the death or danger to human life was not the result of inattention, mistake in judgment, or misadventure, but the natural and probable result of an aggravated, reckless, or grossly negligent act."
The jury also received CALJIC No. 3.36, as to the definition of gross negligence.

The jury received CALJIC No. 3.30, that there must exist a union of act and general criminal intent for involuntary manslaughter: "General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful."

The court further instructed the jury that it must determine the truth of the two firearm allegations if it found defendant guilty of the charged offense or a lesser included felony offense. As to the section 12022.5, subdivision (a) allegation, the jury was instructed that the prosecution had the burden of proving that defendant personally used a firearm "during the commission of the crime charged," that he "intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it." As to the section 12022.53, subdivision (d) allegation, the jury was instructed that the prosecution had the burden of proving that defendant "intentionally and personally discharged a firearm and caused great bodily injury or death to a person during the commission of the crime charged." "The term 'intentionally and personally discharged a firearm' ... means that the defendant himself must have intentionally discharged it." B. Closing arguments

In closing argument, the prosecutor argued defendant was guilty of first or second degree murder. The prosecutor focused on defendant's statements to the 911 operator, that he shot Josh in a fury and rage, and he never said it was an accident or he fired because he had been startled. The prosecutor asserted that defendant fired both shots on purpose. Even if he fired the first shot accidentally, defendant intentionally fired the second shot at Josh because he was angry. The prosecutor asserted that defendant's conduct was not consistent with the lesser included offenses of voluntary or involuntary manslaughter, because he acted intentionally and there was "nothing involuntary about what the defendant did" unless the jury believed "his new version of events and you completely ignored the 9-1-1call." The prosecutor also asserted the firearm enhancements should be found true since defendant intentionally discharged his weapon when he shot Josh.

In his closing argument, defense counsel argued the prosecution failed to prove beyond a reasonable doubt that defendant acted with malice and intent. Counsel argued defendant was not guilty of first or second degree murder, or voluntary or involuntary manslaughter. Instead, he was innocent of "all the offenses" because the fatal shooting was an accident, the expert testimony established that less pressure was required to pull the trigger for the second shot, defendant was under stress and emotionally upset because he had just attempted to commit suicide, and he accidentally pulled the trigger. Defense counsel further clarified that defendant was not being charged with any criminal offense based on pointing the gun at his head and threatening suicide, and then firing his first shot into the hallway ceiling by the bedroom doorjamb, because he was not being charged with "attempted suicide" and "[t]he first shot killed no one."

After closing arguments, the court asked the parties to place any instructional objections on the record. Neither party discussed the involuntary manslaughter instructions or requested CALJIC No. 3.35.

During deliberations, the jury asked for "clear" definitions of malice and intent. The court discussed the questions with the parties and they stipulated to the court's responses. Thereafter, the court re-instructed the jury with the instructions already given on malice and intent. The court advised the jury to review those instructions and to ask additional questions if further assistance was needed. The jury did not ask additional questions.

As explained ante, defendant was convicted of the lesser included offense of voluntary manslaughter, and the jury found both firearm allegations true. C. Murder and manslaughter

Defendant contends the court's failure to give CALJIC No. 3.35, concurrence of act and criminal negligence, was prejudicial because the omission of the instruction prevented the jury from considering involuntary manslaughter.

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Manslaughter is the unlawful killing of a human being without malice. (§ 192.) Both voluntary and involuntary manslaughter are ordinarily lesser included offenses of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422.)

"A defendant lacks malice and is guilty of voluntary manslaughter in 'limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" [citation], or when the defendant kills in "unreasonable self-defense"— the unreasonable but good faith belief in having to act in self-defense [citations].' [Citation.]" (People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) Voluntary manslaughter includes an unlawful killing committed with the intent to kill, or with conscious disregard for danger to human life, where the element of malice is negated by heat of passion or imperfect self defense. (People v. Rios (2000) 23 Cal.4th 450, 461-462; People v. Parras (2007) 152 Cal.App.4th 219, 224.)

"Involuntary manslaughter is a lesser offense of murder, distinguished by its mens rea. [Citation.] The mens rea for murder is specific intent to kill or conscious disregard for life. [Citation.] Absent these states of mind, the defendant may incur homicide culpability for involuntary manslaughter. [Citations.] Through statutory definition and judicial development, there are three types of acts that can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony. [Citation.] [F]or all three types of predicate acts the required mens rea is criminal negligence." (People v. Butler (2010) 187 Cal.App.4th 998, 1006.) "The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter, regardless whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony." (Id. at p. 1008.) D. Analysis

Defendant contends that the court had a sua sponte duty to instruct the jury with CALJIC No. 3.35, concurrence of act and criminal negligence:

"In the crime[s] charged in Count[s] [or the crime[s] of which [is a] [are] lesser crime[s] thereto], there must exist a union or joint operation of act or conduct and criminal negligence."
The "Use Note" for this instruction states that it is "limited to those few offenses where criminal negligence and not intent is involved." (Use Note to CALJIC 3.35 (2011) p. 164.)

Defendant argues the court's failure to give CALJIC No. 3.35 prevented the jury from considering whether his conduct consisted of exhibiting a firearm in a negligent manner without the intent to commit a crime, such that he was guilty of involuntary manslaughter. Defendant further argues the jury was presented with "two distinct acts of discharging the firearm"—the first shot into the ceiling and the fatal shot into Josh's chest—such that CALJIC No. 3.35 was "absolutely necessary" for the jury to understand the interaction of criminal negligence and involuntary manslaughter, and so that it would not be confused as to which shot was the basis for the charged offense.

We first note that the entirety of the record refutes any possibility the jury could have convicted defendant of voluntary manslaughter and found he had the intent to kill based on his first shot into the hallway ceiling. While the parties used their closing arguments to discuss the sequence of events in the hallway-when defendant aimed the gun at his head and then fired into the ceiling-the trial evidence and closing arguments clearly focused on defendant's state of mind when he discharged the weapon the second time and fired the fatal gunshot into Josh's chest. Indeed, defense counsel clarified that defendant was not being charged with any offense based on pointing the gun at his head and then firing into the ceiling.

We further note that the jury received several instructions which correctly defined criminal negligence as it related to involuntary manslaughter. To the extent that the court should have given CALJIC No. 3.35 on the concurrence of act and criminal negligence, we find that the factual question posed by the omitted instruction on the lesser included offense was resolved adversely to defendant under other, properly given instructions, that defendant did not negligently fire the fatal shot in this case. (People v. Lewis (2001) 25 Cal.4th 610, 646; People v. Pulido (1997) 15 Cal.4th 713, 726; People v. Sojka (2011) 196 Cal.App.4th 733, 738.)

Defendant argues the jury's guilty verdict of voluntary manslaughter does not mean that it found he intentionally acted when he fired the fatal shot into Josh's chest. Defendant is correct that an unintentional killing may be voluntary manslaughter under certain circumstances. "[W]hen a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary rather than involuntary manslaughter." (People v. Blakeley, supra, 23 Cal.4th at p. 91.) In addition, "an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter." (People v. Garcia (2008) 162 Cal.App.4th 18, 31.)

This particular theory of voluntary manslaughter is at issue in cases currently pending before the California Supreme Court. (See, e.g., People v. Bryant (2011) 198 Cal.App.4th 134, review granted, Nov. 16, 2011 (S196365).)

In the instant case, however, defendant was also charged with two special allegations: that he personally used a firearm in the commission of the charged offense (§ 12022.5, subd. (a)); and he personally and intentionally discharged a firearm in the commission of the charged offense, causing great bodily injury or death (§ 12022.53, subd. (d)). In order to find these special allegations true, the jury had to find defendant "intentionally" used a firearm in the commission of the crime. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1494.) The jury found both allegations true, thus indicating that the jury found defendant intentionally used the firearm when he fired the fatal shot into Josh's chest, and that he did not accidentally or negligently discharge the firearm.

As explained ante, while the jury found the section 12022.53, subdivision (d) special allegation true, the superior court properly declined to impose a term for that finding since it is statutorily inapplicable to a voluntary manslaughter conviction. (People v. Villanueva, supra, 196 Cal.App.4th at p. 417, fn. 6; § 12022.53, subd. (a).)

Defendant acknowledges the jury found the firearm allegations true, but argues the jury could have found those allegations true based on his first shot, when he intentionally fired at the ceiling. This argument is not supported by the record. The special allegations were based on defendant's intentional discharge of a firearm during the commission of the charged offense. The jury was clearly informed that the charged offense was based on defendant's act of firing a single shot into Josh's chest-the disputed question was whether defendant did so deliberately, intentionally, with or without malice, or negligently.

While a voluntary manslaughter verdict conceivably may be based on the jury finding that a defendant did not act with intent, the jury's finding on the section 12022.5 firearm allegation eliminates any possibility that it might have found defendant guilty based on an unintentional theory of voluntary manslaughter. We thus conclude that to the extent the court should have given CALJIC No. 3.35 on criminal negligence and involuntary manslaughter, the jury resolved this issue adversely to defendant under other, properly given instructions.

DISPOSITION

The judgment is affirmed.

_________________

Poochigian, J.

WE CONCUR:

_________________

Dawson, Acting P.J.

_________________

Detjen, J.


Summaries of

People v. Smith

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 6, 2012
No. F060859 (Cal. Ct. App. Feb. 6, 2012)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THOMAS CRENSHAW SMITH, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 6, 2012

Citations

No. F060859 (Cal. Ct. App. Feb. 6, 2012)