Opinion
In denying hearing, the Supreme Court ordered that the opinion be not officially published.
Previously published at 111 Cal.App.3d 300.
Ordered Not Published (Rule 976, Cal. Rules of Ct.)
Quin Denvir, State Public Defender, Kathleen Kahn, Deputy State Public Defender, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Michael J. Weinberger, Deputy Attys. Gen., for plaintiff and respondent.
Assigned by the Chief Justice.
This is an appeal from a judgment of conviction entered after the defendant was found guilty by a jury of assault with intent to commit murder. The jury also found that defendant used a deadly weapon in the commission of the offense.
In the early morning of October 6, 1978, Steve Mars (the victim), Lori Long (defendant's former girlfriend) and two others arrived at defendant's residence in Vallecito, California. Ms. Long had lived with the defendant for three years, but had severed their relationship several weeks before. Mars had been a close friend of the defendant, and, in fact, had lived with the defendant and Ms. Long and a girlfriend for some time, but their relationship was strained by the defendant's awareness that he and Ms. Long had begun sleeping together since her break-up with the defendant. During two earlier telephone conversations, the defendant had indicated his intention to fight with Mars. Ms. Long entered the house and talked with defendant for an hour, negotiating the division of their property and trying to dissuade him from fighting Mars.
Defendant repeatedly urged her to bring Mars into the house. Defendant then asked his current girlfriend to invite him into the house. Mars declined the invitation. Defendant went to the front door, which was open with the screen door closed, and invited Mars several times to "come up here" or "come in here." Mars approached the house and stepped up onto the porch. He stood three or four feet from the screen door. Suddenly, the screen door was thrown all the way open, and Mars fell, shot in the jaw by the defendant.
Mars testified that he thought the defendant kicked the screen door open or pushed it with his left hand, because he saw the defendant lift his right arm up and fire after the door swung open. After he fell, he looked up at the defendant, who was standing on the porch, still pointing the gun at him. Then Ms. Long screamed, and defendant dropped the gun. Mars ran into the street. He was led back to the car by one of his friends, while defendant hovered about them, saying, "I am really sorry. I am sorry. I don't want to go to jail. It was an accident." Mars admitted having "snorted" methamphetamine earlier in the evening. A witness testified that he saw Mars inject methamphetamine into himself. Three witnesses saw him smoking marijuana.
Defendant and his girlfriend both testified that the pistol fired when the defendant struck the screen door with it. Defendant testified that he did not want to fight with Mars, and picked up the loaded pistol merely to frighten him and so prevent a fight. After the shooting, defendant repeatedly expressed his sorrow and his concern for Mars and insisted the shooting was accidental.
Expert testimony established that the gun could fire without the trigger being pulled if the hammer were pulled back 10-12 mm and released, but would not fire when the hammer was at rest, even though hit hard against an object. Defendant and two witnesses testified that he had once almost shot himself when the gun fired accidentally while he was unjamming it.
Defendant raises several contentions on appeal. We agree with his contention that the trial court erred in instructing the jury regarding the concepts of implied malice and felony-murder, since those instructions may have suggested to the jury that the defendant did not have to harbor an intent to kill to be found guilty of assault with intent to commit murder. We also conclude that these errors require reversal of his conviction.
The trial court instructed the jury that "[e]very person who assaults another with the specific intent to commit murder, is guilty of the crime of a crime." (Former CALJIC No. 9.01 (3d ed., 1970).) It defined murder in the language of former CALJIC No. 8.10 (3d ed., 1970): "Murder is the unlawful killing of a human being, with malice aforethought." Contrary to the suggestion of the "use note" accompanying it, the court read former CALJIC No. 8.11 (1974 Revision), defining "malice aforethought," in its entirety:
"'Malice' may be either express or implied.
Malice is express when there is manifested an intention unlawfully to kill a human being.
Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness or when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.
The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.
'Aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act."
Relying on our decision in People v. Heffington (1973) 32 Cal.App.3d 1, 107 Cal.Rptr. 859, which was reflected in the "use note" of former CALJIC No. 8.11, as it is reflected in the "use notes" of the 1979 Revisions of CALJIC Nos. 8.11 and 9.01, defendant contends that it was error to instruct the jury that malice might be implied by the felony-murder doctrine. Relying on People v. Martinez (1980) 105 Cal.App.3d 938, 165 Cal.Rptr. 11, he contends that it was error to give the jury any instruction on implied malice.
I
In People v. Heffington, supra, we disapproved the use of the portion of CALJIC No. 8.11 relating to felony-murder, "[b]y parity of reasoning with People v. Ireland [(1969)] 70 Cal.2d 522, 538-539, 75 Cal.Rptr. 188, 450 P.2d 580 ... [which] teaches that the court should not tell the jury that malice may be implied from a killing perpetrated in the course of a felonious assault; ... As a matter of abstract law, second degree murder may result as the byproduct of a dangerous felony ... even though the accused does not harbor an actual intent to kill. [ Citation.] When this abstract proposition is injected into a trial for assault with intent to commit murder, it dilutes the demand for proof of specific intent to commit murder. It permits the jury to substitute a finding of relatively undifferentiated assaultive intent for the specific intent to murder which is a vital element of the crime." (32 Cal.App.3d at pp. 12-13, 107 Cal.Rptr. 859.)
The People concede that the court erred in failing to delete the portion of the instruction relating to felony-murder, but insist that the error was harmless, since the prosecution did not argue, or even suggest, to the jury that it could find the requisite intent to commit murder based on defendant's commission of a felony. The prosecution argued strenuously that the defendant intended to kill his victim.
Despite the rigorous test, discussed infra, by which we determine whether an error is harmless which furnishes the jury an improper theory upon which to find the defendant guilty, as an alternative to a proper one, we might be persuaded that reversal were not mandated if this were the only error. (See People v. Houts (1978) 86 Cal.App.3d 1012, 1021, fn. 1, 150 Cal.Rptr. 589.) People v. Roy (1971) 18 Cal.App.3d 537, 550, 95 Cal.Rptr. 884 (disapproved on other grounds, People v. Ray (1975) 14 Cal.3d 20, 32, 120 Cal.Rptr. 377, 533 P.2d 1017).) It was not.
II
In People v. Martinez, supra, a division of the Second District Court of Appeal, reversed a conviction of assault with intent to commit murder where the jury was instructed on the concept of implied malice according to CALJIC No. 8.11, supplemented by a sentence from CALJIC No. 8.31 to the effect that "[w]hen the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being." (105 Cal.App.3d at p. 941, 165 Cal.Rptr. 11.) The court pointed out that it has long been the law in California that attempted murder or assault with intent to commit murder requires a specific intent to kill, although murder does not. (Id., at p. 942, 165 Cal.Rptr. 11; see also People v. Mize (1889) 80 Cal. 41, 43-44, 22 P. 80; People v. Miller (1935) 2 Cal.2d 527, 532-533, 42 P.2d 308; People v. Snyder (1940) 15 Cal.2d 706, 708-709, 104 P.2d 639; People v. Hoxie (1967) 252 Cal.App.2d 901, 904-905, 911, 61 Cal.Rptr. 37; People v. Wein (1977) 69 Cal.App.3d 79, 92, 137 Cal.Rptr. 814; People v. Belton (1980) 105 Cal.App.3d 376, 380-381, 164 Cal.Rptr. 340.) In view of this, the court concluded: "We agree that the appropriate murder definitions were given; however, ... the jury was also instructed that they could find intent to kill, pursuant to CALJIC No. 8.31 by implication, where the defendant did an act with a high degree of probability that it would result in death; and that malice could be implied if the killing was the result of the perpetration of an inherently dangerous felony. The instructions were not merely inconsistent or confusing but would appear to inform the jury that although specific intent was an element of the crime, the intent could be implied from the facts of the case." (People v. Martinez, supra, 105 Cal.App.3d at p. 945, 165 Cal.Rptr. 11.)
The People seek to distinguish Martinez on the ground that, in the present case, the defense requested CALJIC No. 8.11, whereas in Martinez the instructions were given over defense objections. In the absence of any suggestion in the record of a tactical purpose in requesting the erroneous instruction, however, defendant should be permitted to object to it on appeal. (People v. Graham (1969) 71 Cal.2d 303, 319, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Barraza (1979) 23 Cal.3d 675, 683-684, 153 Cal.Rptr. 459, 591 P.2d 947; Pen.Code, § 1259.)
More tellingly, the People attack the Martinez decision on the ground that it fails to keep the separate elements of intent to kill and "malice aforethought" analytically distinct in its evaluation of the effect of the instructions on implied malice. Thus, the jury was literally instructed that an assault with intent to commit murder involved an assault with intent to commit (1) an "unlawful killing," combined with (2) either "an intention unlawfully to kill a human being" or "an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life ...." The People therefore contend that the jury was apprised that intent to kill was a necessary element of the offense.
Defendant admits that the jury may have so understood the instruction, but contends that it is far more likely that they were confused by it. He suggests, reading the instructions less literally, that they may well have appeared puzzling and inconsistent to the jury, advising them at one moment that the defendant must have had a "specific intent" to commit murder, and in the next informing them that murder may be committed without any intent to kill.
We think the jury may well have been misled. Even if they listened very carefully to the instructions, trying hard to be sensitive to their nuances, it would have been difficult to divine from them that assault with intent to commit murder invariably requires an intent to kill. The concept of implied malice obviously permits the jury to find the existence of malice based on a lesser showing than that the defendant harbored an intent to kill, express malice. The giving of an implie malice instruction may have suggested to the jury that intent to kill could not be a necessary element of the offense, since, if it were, the instruction would be meaningless. Thus, the jury was encouraged to equate proof of malice with proof of guilt. This was precisely the problem in Martinez, although it is true that the giving of a portion of CALJIC No. 8.31, in addition, may have heightened somewhat the danger of jury confusion by making it even more explicit that murder does not require an intent to kill. (105 Cal.App.3d 945, 165 Cal.Rptr. 11.) We think the giving of the implied malice portion of CALJIC No. 8.11 was enough to confuse them.
It would not be correct to say that express malice was proved by a showing that defendant harbored an intent to kill, since the existence of malice might be negated by a "sudden quarrel or heat of passion" or diminished capacity. (People v. Heffington, supra, 32 Cal.App.3d at p. 12, 107 Cal.Rptr. 859.) These defenses would be as effective in negating implied malice as express, however.
The attorneys' arguments to the jury did nothing to relieve any such confusion. The prosecutor did argue forcefully that the evidence showed that defendant harbored an intent to kill, but he mentioned the concept of implied malice twice. His first reference to it was in the course of a brief preview of the instructions heretofore discussed, and was of no help. His second reference to it was less confusing, but still ambiguous: "What we are saying is that when he picked up that gun he intended to kill Mr. Mars before he shot that weapon. That is where the aforethought comes in. And when he shot him, he knew that it was an act which was socially base and anti-social and had a great degree of probability of killing someone. That is what malice aforethought is. And that was what Mr. von Glahn had." While the prosecutor did argue that defendant intended to kill his victim, the statement, with its possibly parallel references to "aforethought" and "malice aforethought" may be read as referring to the alternative forms of malice, express and implied. It should be noted, too, that the prosecutor emphasized that the gun used by defendant was "temperamental, volatile" and thus unsafe. Defense counsel definitely indicated to the jury that intent to kill and implied malice were alternative bases for finding the defendant guilty: "You have to find that von Glahn intended to kill him, not frighten him, kill him. And you, you are going to have the alternative of implied malice, when he does something which involves a high degree of probability that it will result in death and he has done this for a base, anti-social purpose and a wanton disregard for life."
"[T]he court will instruct you that as far as the assault with the intent to commit murder goes, it is a specific intent crime and the specific intent which exists must be the intent to commit murder. And the court will instruct you as to murder, and ... will instruct you that murder is the unlawful killing of another human being with malice aforethought. And the court will tell you that malice may be express or implied. And the court will instruct you that malice, malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, anti-social purpose and with a wanton disregard for human life. I am not saying he killed. I am saying it was ass[a]ult with intent. He didn't kill him, but it is clear that it was anti-social, and it is clear that he had no regard for human life. And it is an act involving a high probability of death. Because he didn't bleed as much, is why he didn't suffocate because there wasn't as much bleeding in the interior. But that is the only thing, and the court will instruct you that malice aforethought does not imply deliberation or considerable lapse of time, but only the mental state, the state of attempting to kill him occurred before the act."
It is likely, in fact probable, that the jury found that defendant intended to kill his victim. It is reasonably possible, however, that it found defendant guilty based on his dangerous and wanton behavior in confronting the victim with a gun. The evidence supporting a finding that defendant intended to kill also supported a finding of wanton conduct, and the confusing instruction may have misled the jury into thinking it could truncate its inquiry into his actual mental state. (See People v. Goodman (1970) 8 Cal.App.3d 705, 708, 87 Cal.Rptr. 665 (disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 451-452, 99 Cal.Rptr. 313, 492 P.2d 1).) When a case is presented to the jury on alternate theories, some of which are legally correct and others incorrect, and the reviewing court cannot determine from the record on which theory the verdict rested the conviction cannot stand. (People v. Green (1980) 27 Cal.3d 1, 69, 164 Cal.Rptr. 1, 609 P.2d 468.)
The judgment is reversed.
PARAS, Acting P. J., and EVANS, J., concur.
Rehearing denied; EVANS, J., dissenting.
Hearing denied; CLARK, J., dissenting.