Opinion
E031039.
7-14-2003
THE PEOPLE, Plaintiff and Respondent, v. DANIEL STEVEN WEST, Defendant and Appellant.
Marianne Harguindeguy Cox, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Anthony Da Silva, Arlene Aquintey Sevidal and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant appeals from his convictions for attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a)) and aggravated assault (§ 245, subd. (a)(1)), both with enhancements for inflicting great bodily injury on a person 70 years of age or older (§ 12022.7, subd. (c)) and use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). Defendant argues that the jury was erroneously instructed that attempted voluntary manslaughter merely requires proof of a conscious disregard for life. We agree and reverse that conviction, finding that attempted voluntary manslaughter requires proof of a specific intent to kill and there was a reasonable probability of a more favorable result absent the error.
All further statutory references will be to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS
One afternoon in the summer of 2001, a neighbor of defendants tried to engage defendant in conversation, but defendant just stared at the neighbor. The neighbor became nervous and backed away from defendant. Defendant then returned to his truck, where he sat motionless for about five minutes. The neighbor eventually approached defendant again and asked what was wrong, but still got no response. At that point, defendant drove away.
Later that afternoon, defendant drove past the home of the victim. Defendant was acquainted with the victim because their daughters were good friends. The victim was outside in front of his house working on a boat and saw defendant drive past. About fifteen minutes later, defendant drove back past the victims house in the other direction and stopped near the victims boat.
The victim walked out to defendants car and asked defendant how he was doing, but defendant just looked straight ahead without responding. When the victim finally asked defendant what was going on, defendant responded haltingly: "When we bought and signed with Rita, my wife said we should have bought from [the victim]." The victim was a real estate agent and thought defendant was trying to apologize for using another agent to buy a house a few years before, so the victim responded that the important thing was that defendant was happy with his purchase. The victim then mentioned that defendants daughter had just visited the night before. Defendant responded, again in a halting manner: "She didnt come and see me." At that point, a car approached from behind and was unable to pass due to the narrow road, so defendant drove away. With defendant gone, the victim returned to his work and began putting his tools away in the garage.
Defendant returned sometime later, parked his car in the victims driveway, and walked into the victims garage. The victim asked defendant how he was doing and defendant again failed to respond. The victim then asked defendant what was going on and defendant still failed to respond. When the victim subsequently crouched down to pick up a basket of left-over screws that he needed for another project, defendant grabbed a hammer and struck the victim in the back of the head. While defendant continued to strike at the victim with the hammer, the victim grabbed defendant in a bear-hug, knocked defendant to the ground, and tried to pull the hammer away. Defendant and the victim ended up on their feet wrestling with the hammer. The victim pulled defendant out of the garage and into the driveway, where a neighbor saw them and responded to the victims cries for help. The neighbors presence distracted defendant, allowing the victim to pull the hammer away. After they had separated, defendant returned to his truck and drove away as if nothing had happened. The victim described defendant as expressionless or zombie-like throughout the encounter, and testified that during the struggle for the hammer, defendant kept repeating: "Tell me whats going on or I11 kill you."
Sheriffs deputies responded to the scene, obtained defendants name and address, and went to his house to confront him. When the deputies arrived, defendant had already changed his clothes and cleaned himself up. Defendant spontaneously stated that he thought the victim was threatening him and he "just lost it." Defendant was cooperative, but seemed distracted and spoke very slowly.
Defendant was charged with attempted murder ( §§ 664/187) and aggravated assault ( § 245, subd. (a)(1)), both with allegations of inflicting great bodily injury on a person 70 years of age or older ( § 12022.7, subd. (c)) and use of a deadly or dangerous weapon ( § 12022, subd. (b)(1)). Defendants attorney consulted with a clinical psychologist and requested a formal competency evaluation. After the evaluations were completed, the court found defendant competent to stand trial.
During trial, several character witnesses testified on defendants behalf that defendant was quiet, cordial, respectful, calm, and fair-tempered. A neighbor indicated that defendant often spoke with the neighbors wife, but he would always become silent when the neighbor came around. The neighbor claimed that defendant always spoke slowly with long pauses between words.
Defendant also offered the testimony of the clinical psychologist who originally evaluated him. She testified that although defendant was competent to stand trial and did not qualify for an insanity defense, he did suffer from a schizotypal personality disorder. She described this disorder as a moderate inability to perceive reality that appears as slightly odd behavior and causes impairments in interpersonal relationships, feelings, and thought. She testified that this disorder had severely impaired defendants social relations, leaving him without friends and completely unable to interact with people. She noted that in this case, defendant apparently believed that the victim said that he was about to put another nail in the coffin, which defendant interpreted as a threat.
Finally, defendant testified and essentially confirmed the sequence of events. Defendant claimed that he stopped to talk with the victim about listing his house for sale and wanted to apologize for originally purchasing the house through another realtor, but became confused and had trouble explaining himself. When defendant returned the second time and entered the victims garage, he intended to ask the victim about listing the house again. Defendant claimed that during a conversation about listing the house, the victim mentioned that he was just working on a coffin, putting the last nails in, and needed to find a screw. When the victim subsequently crouched down to pick something up, defendant became afraid that the comment about putting the last nails in a coffin was a threat directed at him and that the victim was reaching down to get a weapon. Defendant grabbed a hammer nearby and struck just as the victim started to stand up.
Defendant did not remember much after that. Defendant admitted that he repeatedly asked the victim to tell him what was going on, but denied that he ever said: "I11 kill you." When the victim began yelling that defendant was trying to kill him, defendant told the victim "If you die, I die," because he believed his life would be over if the victim died. Defendant claimed that he tried calm the victim, but finally let go of the hammer and left when he saw the neighbor coming over. Defendant conceded that he may have misunderstood the victim, but denied that he ever intended to kill the victim.
The jury was instructed on imperfect self-defense and attempted voluntary manslaughter as a lesser included offense to attempted murder. The jury ultimately found defendant guilty of attempted voluntary manslaughter and aggravated assault, and found the enhancement allegations to be true. Defendant was sentenced to the middle term of three years for the manslaughter conviction, with an additional six years for the enhancements to be served consecutively. The same sentence was imposed for the aggravated assault count, but stayed pursuant to section 654.
DISCUSSION
1. Attempted Voluntary Manslaughter Instruction
Defendant argues that the jury was erroneously instructed that attempted voluntary manslaughter is an unlawful killing "either with an intent to kill, or in conscious disregard for human life." (Italics added.) Defendant is correct. Attempt crimes normally require proof of specific intent and voluntary manslaughter is no exception. ( § 21a; People v. Simington (1993) 19 Cal.App.4th 1374, 1379.) As a result, the court erred by instructing the jury that it could find defendant guilty of attempted voluntary manslaughter based on a conscious disregard for life.
Respondent counters that when the instructions are viewed as a whole, the jury was properly instructed that specific intent applies. Respondent notes that jury was instructed that there must be a concurrence of act and "specific intent" (CALJIC No. 3.31), that "specific intent" may be proven by circumstantial evidence (CALJIC No. 2.02), and that an attempt to commit a crime requires proof of a "specific intent" to commit the crime (CALJIC No. 6.00). However, these instructions did not cure the aforementioned error because they never defined the necessary specific intent. In fact, one of the instructions merely provided that "the specific intent required is included in the definitions of the crimes set forth elsewhere in these instructions." Thus, the jury was actually referred back to the erroneous attempted voluntary manslaughter instruction.
Respondent also argues that defendant waived this issue by not raising it below. Not so. The court has a sua sponte duty to instruct on lesser included offenses, and that includes a corresponding duty to provide correct instructions. (People v. Coddington (2000) 23 Cal.4th 529, 591-592, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, no objection was required.
Nevertheless, an erroneous instruction on a lesser included offense is only reversible when there is a reasonable probability of a more favorable result absent the error. (People v. Coddington, supra, 23 Cal.4th at p. 593, citingPeople v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) After reviewing the record, we find a reasonable probability of a more favorable outcome and reverse. Although striking someone in the head with a hammer is certainly indicative of an intent to kill, when viewed in the context of defendants strange behavior and apparent delusions, the inference of intent to kill tends to dissipate somewhat. In fact, defendants subsequent statements to the victim, "Tell me whats going on or I11 kill you" (italics added), belies any such intent. Defendants statement merely indicates a desire to get an answer, which is logically incompatible with an intent to kill because, after all, dead men tell no tales.
Defendant also argues that there was insufficient evidence to support the attempted voluntary manslaughter conviction. We disagree, finding sufficient reasonable, credible, and solid evidence to allow a reasonable trier of fact to find guilt beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
The likely prejudice was exacerbated by other aspects of the trial. First, the jury was clearly confused by the manslaughter instruction, asking the court to provide "another description (in laymans terms) of voluntary manslaughter." The court properly refused, leaving the jurors to struggle with an instruction that was both confusing and incorrect. Second, during closing arguments, defense counsel merely asked for a not guilty verdict on attempted murder, essentially conceding attempted voluntary manslaughter. Thus, rather than clarifying the law, defense counsels argument served only to further muddy it.
2. Deadly Weapon Enhancement
We further note that on the remaining conviction for aggravated assault ( § 245, subd. (a)(1)), the one-year deadly weapon enhancement ( § 12022, subd. (b)(1)) should not have been imposed because use of a deadly weapon is an element of the offense. (People v. McGee (1993) 15 Cal.App.4th 107, 110.)
DISPOSITION
The conviction for attempted manslaughter is reversed and the deadly weapon enhancement for aggravated assault is stricken, otherwise the judgment is affirmed.
The record reveals another error. The jury was instructed that evidence of defendants mental disorder was admissible solely on the issue of malice aforethought, but such evidence is also admissible on the issue of specific intent. (§ 28.) If attempted voluntary manslaughter is retried, a complete mental disorder instruction should be given.
We concur Ward, J., and Gaut, J.