Opinion
B329175
06-27-2024
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JAMAL DARBY, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA115071, Chet Taylor, Judge. Reversed and remanded.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P.J.
Defendant Jamal Darby stole clothing from a liquor store and a store employee chased after him. As defendant started his car, the store employee jumped on the roof of the vehicle. Defendant then accelerated and repeatedly swerved; the employee fell from the vehicle and died from his injuries. Although acquitted of robbery and first degree murder, a jury found defendant guilty of the second degree murder of the employee. On appeal, defendant argues, among other things, that the trial court erred by instructing the jury on second degree murder and by not instructing on manslaughter or vehicular manslaughter. We reverse because the trial court prejudicially erred in failing to instruct on voluntary manslaughter.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Homicide
At 10:30 p.m. on July 23, 2020, defendant entered a liquor store, grabbed clothes, and ran out of the store without paying for them. Victor Saucedo Talavera and another employee were working behind the checkout counter at the liquor store and observed defendant's theft. Talavera jumped over the counter and ran after defendant, who dropped some items (socks, underwear, and shirts) as he fled. When defendant got inside his car and started it, Talavera jumped on top of it. About a second after Talavera mounted the roof, defendant drove off with Talavera clinging to the top of the car. Defendant drove at a higher rate of speed than surrounding vehicles and repeatedly swerved his car. Talavera fell from the car and died from blunt force injuries sustained in the fall; there was no indication that he was run over by a vehicle. Law enforcement inspected defendant's car and found dents on the roof and the top of the trunk.
In a recorded jail call made about one month after the incident, defendant told his mother that he could not be charged with murder because he did not run over anyone. Defendant stated that when the man fell off his car, he looked behind to make "sure he was cool" before getting on the freeway.
II. Trial
The People charged defendant with murdering Talavera "with malice aforethought" (Pen. Code, § 187, subd. (a); count 1); and second degree robbery by "unlawfully, and by means of force and fear tak[ing] personal property from the person, possession, and immediate presence of" Talavera (§ 211; count 2).
All subsequent undesignated statutory references are to the Penal Code.
Prior to trial, the prosecutor indicated she was proceeding on a theory of felony murder.
At trial, the prosecutor elicited testimony establishing the facts summarized above from the second store employee, a customer inside the store who saw the theft, witnesses on the street, the medical examiner, and law enforcement officers who investigated the case. The People also introduced videos from the store's surveillance camera system and from a city camera capturing defendant's conduct inside the store and on the street. The court excluded as irrelevant testimony showing that Talavera had a blood alcohol level of 0.11. Defendant did not present any evidence at trial.
At the close of evidence, the parties discussed jury instructions. The trial court stated that based on the evidence, defendant could be convicted of felony murder or second degree murder.
Defense counsel specifically asked for an instruction on either involuntary manslaughter or vehicular manslaughter, but not on voluntary manslaughter. Defense counsel argued: "I think it is very likely a jury could find, at the time my client took off, he didn't know there was someone [o]n his car, because it was so instantaneous and didn't learn that information until he's already driving. I also think a jury could find it is incredibly shocking and surprising that someone had jumped on his car." Defense counsel told the court, "it's a very factual decision for the jury . . . what was he, my client, thinking at the time he realized someone was on his car and he decided to swerve? . . . Especially in a situation where you have these charges that are lesser included, the court should err on the side of giving it to the defense and leaving that issue to the jury."
In response, the prosecutor noted that involuntary manslaughter did not apply to acts committed while driving a vehicle, and that vehicular manslaughter was not a lesser included offense to murder.
Declining the defendant's requested instructions, the court stated involuntary manslaughter was not supported by the evidence. The court subsequently instructed on and supplied the jury verdict forms for robbery, first-degree felony murder, and second degree murder.
At trial, defendant did not request an instruction on voluntary manslaughter; he only asked for instructions on involuntary manslaughter and vehicular manslaughter. On appeal, defendant asserts error based on failure to instruct on vehicular manslaughter and voluntary manslaughter; he does not argue involuntary manslaughter on appeal.
In closing arguments, the prosecutor asserted the jury could rely on both the felony murder theory and the implied malice theory of guilt to convict defendant. Defense counsel again admitted defendant caused Talavera's death, but asserted he was not liable for murder. Defense counsel argued: "[A]ll of Mr. Darby's actions, which are uncontested, point to someone who wanted to run into a store and commit a crime of necessity, steal some clothing, hurt no one, bring no weapons, threaten no one. And ultimately, when he realizes he is getting chased, he drops the property and just runs." Defense counsel further asserted: "We are talking about less than a second from the time that Mr. Darby gets in his car, his brake lights turn on, Mr. Talavera jumps on top of the car, and Mr. Darby takes off. We are talking about milliseconds here. We're not talking about a situation where Mr. Darby had time to sit there, put on his seat belt, check his phone and send texts, all the while Mr. Talavera is on his car. That is not what we're talking about. We are talking about split second, flight-or-fight decisions."
As to defendant's mental state, defense counsel opined that defendant was scared and confused, and given how quickly events unfolded, may not have "even fully comprehend[ed] there [wa]s someone on his car until he[ ] already started moving." Counsel argued defendant lacked malice because he did not "have the time to form a conscious or deliberate thought.... There is no way he could have anticipated Mr. Talavera jumping on his car. Everything is happening in real time, and that animal brain takes over."
The jury acquitted defendant of both first degree murder and second degree robbery. The jury instead found defendant guilty of second degree murder. In February 2023, the trial court sentenced defendant to 15 years to life. Defendant timely appealed.
DISCUSSION
Defendant argues the trial court erred by sua sponte instructing on second degree murder as a lesser included offense of first degree murder. Defendant further contends that after the court chose to instruct on second degree murder, the court erred by not instructing on vehicular or voluntary manslaughter.
I. Applicable Law and Standard of Review
"California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. The rule also accords both parties equal procedural treatment, and thus benefits and burdens both to the same degree. Neither party is unfairly surprised by instructions on lesser necessarily included offenses because, by definition, the stated charge gives notice to both that all the elements of any such offense are at issue. By the same token, neither party has a greater right than the other either to demand, or to oppose, instructions on lesser necessarily included offenses." (People v. Birks (1998) 19 Cal.4th 108, 112 (Birks).)
Courts have "applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
Instructions on lesser included offenses "are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman), disapproved on other grounds in People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7 (Schuller).)" 'Substantial evidence' in this context is' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]"' that the lesser offense, but not the greater, was committed." (Breverman, at p. 162.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (Ibid.)"' "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." '" (People v. Steskal (2021) 11 Cal.5th 332, 345.) Even if an offense is a lesser included, the court may refuse a party's request to instruct on it where "there is insufficient evidence that the offense committed, if any, was less than that charged." (People v. King (2010) 183 Cal.App.4th 1281, 1319.)
We independently review the court's decision whether or not to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.) Historically, in noncapital cases, we reviewed the failure to instruct on lesser included offenses supported by substantial evidence for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836, and only reversed when it was reasonably probable the defendant would have obtained a more favorable outcome without such error. (Breverman, supra, 19 Cal.4th 142, 178.)
However, last year, our Supreme Court clarified that where the instructional error is the failure to instruct on the lesser included offense of voluntary manslaughter, "the trial court's failure to instruct on that theory amounts to constitutional error and is thus subject to review under the federal Chapman standard." (Schuller, supra, 15 Cal.5th 237, 243, citing Chapman v. California (1967) 386 U.S. 18.)
Under the Chapman standard, the reviewing court must "reverse the conviction unless it concludes that no 'rational juror who made the findings reflected in the verdict and heard the evidence at trial could have had reasonable doubt regarding the findings necessary to convict the defendant [absent the instructional error].'" (Schuller, supra, 15 Cal.5th 237, 244.)
II. The Second Degree Murder Instruction Was Proper
Here, the information charged defendant with murdering Talavera "with malice aforethought," in violation of section 187, subdivision (a). "Second degree murder is the unlawful killing of a human being with malice." (People v. Hansen (1994) 9 Cal.4th 300, 307, overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1199.) Thus, under the accusatory pleading test, second degree murder was clearly a lesser included offense of the generic malice aforethought murder charged in count 1. (See People v. Taylor (2010) 48 Cal.4th 574, 623 ["it is settled that '[s]econd degree murder is a lesser included offense of first degree murder' "].)
Defendant nonetheless argues that because the prosecution solely pursued a felony murder theory of liability at trial and the trial court excluded defense evidence on this basis, he "was effectively charged with felony murder, not a generically charged first degree murder." For support, defendant cites People v. Gonzalez (2018) 5 Cal.5th 186, 197 (Gonzalez). However, Gonzalez is inapt because it concluded the trial court's failure to instruct on second degree murder was harmless where the defendant was convicted of felony murder but charged with malice aforethought murder in violation of section 187, subdivision (a). (Id. at pp. 193, 195, 209.) Gonzalez does not ordain use of a test other than the accusatory pleading or elements tests to determine lesser included offenses. Gonzalez provides no support for defendant's contention that he was "effectively charged with felony murder."
Defendant clarifies in his reply brief that "either the trial court erred by sua sponte instructing the jury on the lesser related offense [of second degree murder] or the trial court erred by refusing to instruct the jury on [vehicular manslaughter or voluntary manslaughter]." We conclude there was no error in the second degree murder instruction, but the court did err in failing to instruct on voluntary manslaughter.
Furthermore, the Supreme Court has expressly held that courts must consider only the text of the pleading when determining lesser included offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1036 ["Consistent with the primary function of the accusatory pleading test-to determine whether a defendant is entitled to instruction on a lesser uncharged offense-we consider only the pleading for the greater offense."]; see Birks, supra, 19 Cal.4th at p. 119.) "This is so because the role of the accusatory pleading is to provide notice to the defendant of the charges that he or she can anticipate being proved at trial." (People v. Anderson (2006) 141 Cal.App.4th 430, 445.) Contrary to defendant's assertion that he received inadequate notice of a second degree murder charge and that there was a "bait and switch by the trial court" when it instructed the jury on second degree murder, the information's generic murder with malice aforethought charge placed him on notice.
Respondent's citation to People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on another ground by People v. Guiuan (1988) 18 Cal.4th 558, 568, footnote 3, is inapt as it deals with lesser related offenses, and second degree murder is a lesser included offense of the generically charged malice aforethought murder. (See People v. Hicks (2017) 4 Cal.5th 203, 208-209 [" 'a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' [Citation.] If a lesser offense shares some common elements with the greater offense, or if it arises out of the same criminal course of conduct as the greater offense, but it has one or more elements that are not elements of the greater offense as alleged, then it is a lesser related offense, not a necessarily included offense."].) Trial courts have a sua sponte duty to instruct on uncharged lesser included offenses. (Birks, supra, 19 Cal.4th at p. 112.) In contrast, "California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties." (People v. Jennings (2010) 50 Cal.4th 616, 668.)
As second degree murder is a lesser included offense, we turn to whether there was substantial evidence that defendant committed second degree murder but not the felony murder. To justify the second degree murder instruction, substantial evidence must show that defendant killed Talavera with, at minimum, implied malice, i.e. conscious disregard for the danger to human life. (In re Ferrell (2023) 14 Cal.5th 593, 600.) "Implied malice requires proof of both a physical act and a mental state. Physically, a defendant must perform an act whose natural consequences are dangerous to life, or put another way, defendant must perform 'an act that involves a high degree of probability' of death. [Citations.] To establish the mental state required for implied malice, the defendant must deliberately perform the act with a conscious disregard for life, knowing the act endangers another's life." (Ibid.)
Witness testimony and video evidence showed that Talavera jumped on the roof of defendant's car and then defendant accelerated and swerved in what appeared to be an attempt to remove Talavera from the roof. The logical consequence of defendant's actions was that Talavera would fall from the vehicle while it was moving. Thus, there was substantial evidence that defendant knowingly and deliberately acted in a manner that was dangerous to Talavera's life.
The record also supported the finding that defendant did not commit felony murder as the jury acquitted him of robbery. The jury could have reasonably believed defendant did not use force or fear to complete a robbery since he grabbed items from the store shelves and ran. (Pen. Code, § 211 ["Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."].) Therefore, substantial evidence supported the conclusion that defendant committed second degree murder, but not felony murder. Based on this record, the court did not err when it instructed the jury on second degree murder.
To the extent defendant argues the court's instruction on second degree murder was error because the trial court excluded relevant defense evidence based on the prosecutor's felony murder theory, the alleged error is not instructional, but rather evidentiary in nature. As we reverse defendant's conviction based on the failure to instruct on voluntary manslaughter, we do not address evidentiary errors at this juncture.
III. Vehicular Manslaughter Is Not a Lesser Included Offense of Malice Aforethought Murder
Next, defendant contends the trial court was required to instruct the jury on vehicular manslaughter as a lesser included offense. Vehicular manslaughter requires that the killing occur while the defendant was driving a vehicle. (§ 192, subd. (c).) The information did not allege that the homicide occurred while defendant was driving a car; the pleading merely tracked the statutory language for murder with malice aforethought. Under either the elements test or the pleading test, vehicular manslaughter is not a lesser included offense of the murder pleaded in the information because it requires proof of an additional element or fact not included in the murder charge. (People v. Sanchez (2001) 24 Cal.4th 983, 992.)
Defendant, however, urges us to apply an "expanded accusatory pleading test" created by People v. Ortega (2015) 240 Cal.App.4th 956 (Ortega). Ortega was charged with forcible sexual penetration based on evidence of digital penetration; the trial court instructed on forcible sexual penetration and the lesser included offense of assault with intent to commit sexual penetration by force. (Id. at pp. 960-961, 965.) The jury found defendant guilty solely of the assault with intent to commit sexual penetration by force. (Ibid.) On appeal, Ortega argued the trial court should have instructed on sexual battery as a lesser included offense of forcible sexual penetration. (Id. at p. 967.) The Sixth District Court of Appeal agreed, acknowledging that although sexual battery was not a lesser included offense under the elements test, it was a lesser included offense under "an expanded accusatory pleading test." (Ibid.) Considering not just the accusatory pleading but also testimony from the preliminary hearing, the appellate court found that sexual battery was a lesser included offense. (Id. at p. 970.)
We agree with our sister courts that Ortega was wrongly decided. (See e.g., People v. Alvarez (2019) 32 Cal.App.5th 781 (Alvarez); People v. Munoz (2019) 31 Cal.App.5th 143; People v. Macias (2018) 26 Cal.App.5th 957.) As these cases noted, our Supreme Court has instructed that "we consider only the pleading" when applying the accusatory pleading test. (People v. Montoya, supra, 33 Cal.4th at p. 1036.) "As an intermediate appellate court, we are required to follow Supreme Court precedent" and thus" 'we are not to look beyond the language of the accusatory pleading itself in assessing lesser included offenses.'" (Alvarez, at p. 788.)
IV. The Court Committed Reversible Error by Failing to Instruct on Voluntary Manslaughter
Defendant contends the trial court was required to instruct the jury on voluntary manslaughter as a lesser included offense of second degree murder. It is well established that "[v]oluntary manslaughter-an unlawful killing without malice-is a lesser included offense of murder, an unlawful killing with malice aforethought." (People v. Steskal, supra, 11 Cal.5th 332, 345; Breverman, supra, 19 Cal.4th at pp. 153-154 ["Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder"].) Thus, the trial court had a duty to instruct on voluntary manslaughter if there was substantial evidence from which the jury could reasonably conclude that defendant committed voluntary manslaughter, but not murder.
Voluntary manslaughter occurs when the killing results from "a sudden quarrel or heat of passion" (§ 192, subd. (a))"' "or when the defendant kills in 'unreasonable self-defense'-the unreasonable but good faith belief in having to act in selfdefense." '" (People v. Son (2000) 79 Cal.App.4th 224, 231.) We therefore assess whether substantial evidence supported one of these theories of voluntary manslaughter.
a. Heat of Passion Voluntary Manslaughter
"An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' (§ 192 [, subd.] (a)), and is thus voluntary manslaughter [citation], if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an' "ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."' [Citations.]' "[N]o specific type of provocation [is] required ...."' [Citation.] Moreover, the passion aroused need not be anger or rage, but can be any '" '[v]iolent, intense, high-wrought or enthusiastic emotion'"' [citation] other than revenge [citation]." (Breverman, supra, 19 Cal.4th at p. 163.) The issue is not whether there was "such provocation that the ordinary person of average disposition would be moved to kill" but rather whether the provocation would cause an emotion so intense that an ordinary person in the same or similar circumstances "would simply react, without reflection." (People v. Beltran (2013) 56 Cal.4th 935, 949.)
"The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Lee (1999) 20 Cal.4th 47, 59.) The provocative conduct may not be based on" 'predictable conduct by a resisting victim.'" (People v. Jackson (1980) 28 Cal.3d 264, 306 [provocation cannot be based on a resisting victim awakening during a burglary and screaming], overruled on other grounds by People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; see e.g., People v. Johnston (2003) 113 Cal.App.4th 1299, 1303 [no provocation by victim where the defendant incited a physical encounter by rude challenges to another person to fight coupled with threats of violence and death to that person and his entire family].) "A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible." (People v. Oropeza (2007) 151 Cal.App.4th 73, 83 [evidence did not support heat of passion voluntary manslaughter instruction in murder prosecution predicated on defendant's shooting at occupants of truck after truck's driver cut off vehicle in which defendant was riding and defendant encouraged his driver to pursue the truck at a high speed].)
Sufficient provocation to justify a voluntary manslaughter instruction has been found where a trespassing mob attacked a defendant's car with weapons (Breverman, supra, 19 Cal.4th at pp. 163-164), a family member was murdered (People v. Brooks (1986) 185 Cal.App.3d 687, 694), a sudden and violent quarrel occurred (People v. Elmore (1914) 167 Cal. 205, 211), and an unfaithful wife made verbal taunts (People v. Berry (1976) 18 Cal.3d 509, 515). Some examples of inadequate provocations include name calling, smirking, staring, and looking stone-faced (People v. Lucas (1997) 55 Cal.App.4th 721, 739); calling someone a particular epithet (People v. Manriquez (2005) 37 Cal.4th 547, 585-586); refusing to have sex in exchange for drugs (People v. Dixon (1995) 32 Cal.App.4th 1547, 1555-1556); and desiring revenge (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704).
"The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are . . . viewed objectively....'[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) "Moreover, to justify the giving of voluntary manslaughter instructions it is not enough that there is some evidence of heat of passion. [Citation.] There must be 'evidence substantial enough to merit consideration.'" (People v. Williams (1995) 40 Cal.App.4th 446, 454.)
The unique set of facts in this case provided substantial evidence for a voluntary manslaughter heat of passion instruction. The evidence showed that Talavera chased after defendant, and then as defendant started the car, Talavera jumped on top of defendant's vehicle with such force that he dented the trunk and the roof. Viewed objectively, Talavera's physical response to defendant taking clothing from the liquor store was unpredictable, and arguably escalated the situation. Further, the physical act of leaping on top of defendant's vehicle was sufficiently provocative and impulsive that it could cause an ordinary person of average disposition to act rashly and without opportunity for deliberation and reflection. Defendant's responsive acceleration and swerving supported the inference that defendant subjectively experienced an intense, high-wrought, or enthusiastic emotion. Contrary to respondent's assertion otherwise, defendant need not testify for the jury to draw such an inference from the evidence. (See e.g. People v. Canizales (2019) 7 Cal.5th 591, 606 [intent often must be inferred from circumstantial evidence surrounding the crime].) In sum, substantial evidence supported a voluntary manslaughter instruction.
Respondent argues that Talavera's conduct was "reasonable conduct by a resisting victim," and thus insufficient to support provocation, citing People v. Thomas (2012) 53 Cal.4th 771, 813 (Thomas) and People v. Blacksher (2011) 52 Cal.4th 769, 833 (Blacksher). In Thomas, the defendant, who was in an argument with the victim, placed his gun between the victim's eyes and threatened to shoot. The victim grabbed the gun, a struggle ensued, and the victim was shot. (Thomas, at p. 781.) On appeal, the defendant argued the jury should have been instructed on voluntary manslaughter because it could have reasonably found that he went into a rage after the victim grabbed for the gun. (Id. at p. 813.) The Supreme Court concluded that the victim's predictable resistance (grabbing the gun) was "not the type of provocation that reduces a murder charge to voluntary manslaughter." (Ibid.)
Likewise in Blacksher, the Court of Appeal concluded a voluntary manslaughter instruction was unnecessary where the first of two murder victims was asleep when he was shot, and the second had defensive wounds showing she resisted. (Blacksher, supra, 52 Cal.4th at p. 833.) The Blacksher court reasoned the first sleeping victim could not have done anything to suddenly provoke the defendant, and the second engaged in predictable conduct by a resisting victim, insufficient to show provocation. (Ibid.)
The present facts starkly contrast those in Thomas and Blacksher. Those defendants threatened the victims' lives and the victims responded reasonably in self-defense. Yet here, defendant never threatened Talavera; he stole clothing from the liquor store and then fled. There is no evidence defendant had any direct interaction with Talavera inside the store. A jury could reasonably find Talavera's conduct was not reasonable resistance.
Although it does not develop the argument, respondent also seems to imply via a parenthetical that Talavera was making a private arrest and that defendant had no right to defend against this arrest, citing section 837 and People v. Fosselman (1983) 33 Cal.3d 572, 579 (Fosselman). Section 837 gives private persons the right to arrest another for a "public offense committed or attempted in his presence." In Fosselman, at page 577, the defendant falsely imprisoned a woman, who then escaped and sought help from a man named Lasko. Lasko caught the defendant and restrained the defendant's arms. The pair scuffled and the defendant broke Lasko's jaw. (Ibid.) The Supreme Court found the "defendant's act of striking Lasko was [not] justified on the ground of self-defense." (Id. at p. 579.) Since Lasko was arresting defendant under section 837, "when Lasko first restrained him by holding his arms, it was defendant's duty not to resist. [Citations.] . . . Lasko was entitled to use reasonable force to detain him." (Ibid., italics added.)
Unlike Lasko in Fosselman, it was unclear whether Talavera was actually making a private citizen's arrest when he jumped on top of defendant's vehicle. It is also unclear whether Talavera was exercising reasonable force. To the extent respondent briefly makes this argument on appeal, it is an issue of fact for a jury to decide.
We conclude the trial court erred in failing to instruct the jury on voluntary manslaughter under a heat of passion theory.
As we reverse on heat of passion, we do not address imperfect self defense.
b. Prejudice
As mentioned above, because heat of passion operates to negate the malice element of murder, where there is substantial evidence of heat of passion, the prosecution must disprove those circumstances beyond a reasonable doubt. (Schuller, supra, 15 Cal.5th at pp. 253-254.) Accordingly, the failure to instruct on that theory "amounts to an incomplete instruction on the malice element of murder and is therefore subject to Chapman review for constitutional error." (Id. at p. 254.) Under Chapman, reversal is required unless we can conclude beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.)
In People v. Vasquez (2018) 30 Cal.App.5th 786, 799, a different panel of this court explained, "The failure to instruct on a lesser-included offense is more likely to be prejudicial where it strikes at the heart of the defense." There, the defendant beat up the victim, who, unbeknownst to the defendant, had a "hidden spinal injury," which caused the beating to be fatal. (Id. at p. 789.) The court held that refusing defendant's request for a manslaughter instruction was prejudicial error. The court explained that without a manslaughter instruction "the jury was left to decide between first degree murder, second degree murder, and . . . nothing." (Id. at p. 802.) The trial "court's refusal to instruct the jury on the lesser-included offense of . . . manslaughter placed defense counsel in the untenable position of arguing that his client-who had plainly killed a man-should be set free." (Id. at p. 800; see People v. Gonzalez, supra, 5 Cal.5th at p. 191 ["The prejudice arising from the failure to instruct on lesser included offenses and defenses creates a specific kind of risk-that the jury, faced with an all-or-nothing choice between [the greater offense] or acquittal, convicted defendants of first degree felony murder even though the prosecution failed to satisfy its burden."].)
Similarly here, it was undisputed defendant caused Talavera's death. As the jury found insufficient evidence of a robbery, felony murder was not a viable theory. The instructional deficiency forced the jury to choose between second degree murder and acquittal. And, defense counsel was forced to argue for complete acquittal despite admitting her client had caused defendant's homicide. These circumstances were plainly prejudicial because"' "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." '" (People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547.)
Furthermore, manslaughter was the heart of the defense. In her opening statement, defense counsel told jurors: "the prosecution has charged the right guy, but with the wrong crime." Counsel conceded "Mr. Darby is responsible for the death of Mr. Talavera," and implored the jury to "find Mr. Darby not guilty of murder but guilty of manslaughter." Her closing argument similarly focused on defendant's lack of malice due to how quickly events unfolded and how Talavera's conduct was so unpredictable. Defense counsel honed in on defendant's inability to deliberate his course of action and his split-second reaction to Talavera's escalation of the situation. Failure to instruct on manslaughter inhibited the jury's ability to make an informed decision on the element of malice.
For these reasons, we cannot conclude beyond a reasonable doubt that the instructional error did not contribute to the verdict. As we reverse defendant's conviction on this basis, we do not address the other issues defendant raises on appeal.
DISPOSITION
The judgment is reversed, and the matter is remanded for further proceedings.
We concur: LAVIN, J., EGERTON, J.