Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Opinion certified for partial publication. ]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II B, C, D and E.
See footnote, ante, page 319.
[Reprinted without change in the Jan. 2000 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of Solano County, No. C38729, William C. Harrison, Judge. [Copyrighted Material Omitted] COUNSEL
Carol Strickman, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, Raymond A. Cardozo and Joan Killeen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DOSSEE, J.
George John Blakeley appeals from his conviction of voluntary manslaughter, arguing that various instructional errors require reversal. He also contends that the record does not reflect a waiver of his right to a jury trial on a prior conviction. We determine that there were no instructional errors and that the failure to obtain a jury trial waiver on the prior conviction was harmless.
I.
Background
Appellant stabbed Lionel Vallo in the heart during a drunken fight. Vallo died, and appellant was charged with second degree murder and use of a dangerous weapon. (Pen. Code, sections 187, subd. (a), 12022, subd. (b).) On the afternoon of October 25, 1994, appellant's brother, Steven Blakeley, and Tony Santiago were walking to the store to buy dog food. Tony's friend, Lionel Vallo, stopped to give them a ride. Steven noticed that Vallo had finished drinking a can of malt liquor at the feed store. When they all returned to Steven's mother's house, appellant's car was there. Appellant told his friend, David Fraire, to bring in a 12-pack of beer. Appellant and Fraire had been drinking before they arrived.
All five went into the house to drink beer, then Steve and Santiago went outside to feed the dog. Santiago returned to the house, where appellant sold $20 worth of methamphetamine to him and to Vallo. Vallo asked appellant if the drugs were any good, and said that the drugs he previously bought from Santiago were no good. Santiago replied "fuck you" to Vallo. Appellant told them both to shut up, and Vallo responded to appellant "shut the fuck up." Appellant asked Vallo to leave, and Vallo took a swing at appellant with a beer bottle, but missed. As Vallo got up from his seat, appellant hit him in the head with a beer bottle. Vallo, who still had the bottle in his hand, advanced on appellant and swung with the bottle, but appellant ducked and the bottle hit the wall. Appellant pulled a knife from his belt to defend himself. Appellant believed if Vallo saw the knife, he would stop, but Vallo continued to advance. At this point, Vallo was over appellant, hitting him, and appellant was hitting Vallo in the sides. Appellant slipped and fell to the ground with Vallo on top of him, and Santiago pulled Vallo away. Appellant was not aware of the knife entering Vallo's chest. The knife fell on the floor. Fraire never saw the knife and did not realize Vallo had been stabbed, but he said "let's go" to appellant. Appellant grabbed the knife before he left. Appellant knew it was possible that he had stabbed Vallo. After he dropped off Fraire, appellant went to a gas station to change his bloody clothes and throw away the knife. Appellant fled to San Diego, but was arrested on October 30, 1994.
Tony Santiago, who was Vallo's friend, testified that the first he knew of the fight was when he heard the sound of glass breaking, and turned to see Vallo getting up from his chair with glass falling from his head. Santiago saw appellant get up and take a defensive posture, as Vallo confronted him with a beer bottle in his hand. Santiago saw that appellant had a knife, just as Vallo threw the bottle at appellant. Vallo put his arms in the air and rushed appellant, who made an uppercut movement with the knife, stabbing Vallo in the heart. Vallo went limp, and Santiago pulled them apart. Vallo died after the ambulance crew arrived.
Appellant testified on his own behalf that he pulled the knife to defend himself, and to stop Vallo from coming towards him. As he struggled with Vallo, appellant was underneath, trying to grab his legs to tackle him. As they struggled into the kitchen, they slipped on the rug. Appellant fell, and Vallo fell on top of him. Santiago then pulled Vallo off, and appellant fled. The whole fight took about 30 seconds. Appellant did not intend to kill Vallo, or to stab him with the knife, but only to defend himself.
An autopsy revealed that Vallo's death was caused by a stab wound in the heart. The pathologist could not determine whether the knife had been moving in an upward or downward motion when it punctured the chest, or if the pressure came from the movement of the victim's body, or from the individual holding the knife.
Appellant was charged with second degree murder and use of a dangerous weapon. (Pen. Code, sections 187, subd. (a); 12022, subd. (b).) The district attorney later amended the information to allege a prior serious felony, residential burglary. (section 667, subds. (a), (d), (e).) On June 23, 1995, a jury found appellant guilty of voluntary manslaughter, and found the knife enhancement to be true. Defense counsel indicated that a jury had been waived on the second allegation, which concerned the prior felony. The jury was excused and the court found the prior felony allegation to be true. Appellant was sentenced to 29 years, 4 months in prison.
Unless otherwise indicated, all statutory references are to the Penal Code.
II.
Discussion
Appellant contends that several instructional errors deprived him of a fair trial. In addition, he argues that he never waived his right to a jury trial on the prior felony allegation. We review his contentions in the order presented and affirm the judgment.
A. Failure to Instruct on Imperfect Self-defense Theory of Involuntary Manslaughter
The jury was instructed on murder, voluntary and involuntary manslaughter, self-defense, and the effect of an honest, but unreasonable belief in the need to defend as negating malice. Appellant proposed a modified instruction on involuntary manslaughter, which added the following italicized language to the standard CALJIC No. 8.45 instruction.
"Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192(b). [¶] In order to prove such crime, each of the following elements must be proved: 1. A human being was killed; and 2. The killing was unlawful. [¶] A killing is unlawful within the meaning of this instruction when the accused actually but unreasonably believes in the necessity to defend himself and, having such mental state, unintentionally causes the death of a human being."
In place of the language added by the defense, the court gave the standard instruction as to involuntary manslaughter, as follows: "A killing is unlawful within the meaning of this instruction if it occurred: 1. During the commission of a misdemeanor which is inherently dangerous to human life, namely, the offense of brandishing a weapon; or 2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection." (CALJIC No. 8.45 (6th ed. 1996).)
This argument requires an analysis of the theory of unreasonable self defense, and its applicability to involuntary manslaughter. We conclude that the theory has no special application to involuntary manslaughter, and that appellant's jury was correctly instructed.
"Murder is the unlawful killing of a human being with malice aforethought. (section 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. (section 192.) But a defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (section 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense'—the unreasonable but good faith belief in having to act in self-defense. [Citations.]" (People v. Barton (1995) 12 Cal.4th 186, 199 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
In In re Christian S. (1994) 7 Cal.4th 768 [30 Cal.Rptr.2d 33, 872 P.2d 574], our Supreme Court reaffirmed the validity of the doctrine of unreasonable self-defense as described in People v. Flannel (1979) 25 Cal.3d 668 [160 Cal.Rptr. 84, 603 P.2d 1]. Unlike actual self-defense, the Flannel doctrine requires an actual, but unreasonable belief in the need to defend from imminent peril. (Christian S., supra, 7 Cal.4th at p. 773.) The doctrine is not a defense, but is a factor, " '... which—just like "the statutorily suggested 'sudden quarrel or heat of passion'—can negate malice aforethought...." ' [Citation.]" (Id. at p. 776.) Thus, where murder is an unlawful killing, with malice aforethought, the doctrine of imperfect selfdefense negates malice and reduces the offense to manslaughter. (Id. at p. 773.) Unreasonable self-defense is not, however, a defense to manslaughter. (People v. Flannel, supra, 25 Cal.3d 668, 680 [defendant acting under unreasonable belief in need to defend has no legitimate interest in complete exculpation].)
The primary difference between voluntary and involuntary manslaughter is the presence of an intent to kill. (People v. Welch (1982) 137 Cal.App.3d 834, 839-840 [187 Cal.Rptr. 511].) Appellant herein argues that a defendant may act under an actual but unreasonable belief in the need to defend himself, and still act without intent to kill, thus being guilty only of involuntary manslaughter. From this statement, appellant extrapolates a theory of imperfect self-defense/involuntary manslaughter, which, he contends, requires a special instruction. In support of the contention that his theory is a correct statement of the law, appellant cites a number of cases, which he claims support his theory. An examination of those cases does not sustain his contention.
"Manslaughter is the unlawful killing of a human being without malice. It is ...: (a) Voluntary—upon a sudden quarrel or heat of passion" or "(b) Involuntary—in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (section 192.)
People v. Glenn (1991) 229 Cal.App.3d 1461 [280 Cal.Rptr. 609], which appellant cites as "remarkably on point," involved a trial court's failure to instruct on involuntary manslaughter, where the defendant testified that he did not intend to kill the victim. (Id. at pp. 1464, 1467.) The defendant offered two versions of the incident, one in which he accidentally stabbed his victim, and one in which he intentionally stabbed him, unreasonably believing in the need for self-defense. The trial court in Glenn struck the words "involuntary manslaughter" from some instructions, but not others. When the jury inquired about involuntary manslaughter, the court expressly stated that it was not an issue in the case. (Id. at p. 1468.) There is a statement in Glenn which indicates that imperfect self-defense may lead to verdicts "of voluntary or involuntary manslaughter depending on the existence of an intent to kill. [Citations.]" (Id. at p. 1467.) That court also stated that involuntary manslaughter based on criminal negligence "could be viewed as a case of imperfect self-defense." (Ibid.) These statements in Glenn do not announce a new theory of involuntary self-defense. What the court in Glenn must have meant by its statements was that the fact situation which gives rise to the imperfect self-defense doctrine does not preclude an additional finding that the defendant acted without intent to kill. It is the latter element which reduces the crime to involuntary manslaughter, not the unreasonable belief in the need to defend. The error in Glenn was not the failure to give a special instruction linking the Flannel defense to involuntary manslaughter, but the failure to instruct on involuntary manslaughter at all.
Like Glenn, the case of People v. Welch, supra, 137 Cal.App.3d 834, involved the trial court's failure to instruct on involuntary manslaughter, which left the jury with no instruction for an unlawful killing without intent to kill. (Id. at p. 841.) The Welch court stated that a conviction for involuntary manslaughter would be appropriate if the jury found the nature of the victim's attack did not justify the use of deadly force, or that the force used in self-defense exceeded that which was reasonably necessary. (Id. at p. 840.)
.) The fact question for the jury was whether shooting the attacker was a reasonable response. This fact scenario required instruction on involuntary manslaughter. Welch involved actual self-defense. The defendant suffered from thrombophlebitis, which required the use of drugs that prevented his blood from clotting. Thus, when he was threatened by a larger, drunken stranger, who said he would "kick [defendant's] ass" his perception of an immediate threat to his life was reasonable. (People v. Welch, supra, 137 Cal.App.3d at p. 837
People v. Clark (1982) 130 Cal.App.3d 371 [181 Cal.Rptr. 682], merely states that "a conviction for involuntary manslaughter is appropriate where the jury finds that the defendant's resort to deadly force was not reasonable." (Id. at p. 382.) This is a correct statement of the law, in that criminal negligence or accident can negate the intent to kill. The statement, however, does not establish a doctrine of involuntary unreasonable self-defense, it merely focuses on the intent to kill element that differentiates voluntary from involuntary manslaughter. Appellant cites People v. Cameron (1994) 30 Cal.App.4th 591 [36 Cal.Rptr.2d 656], as holding that an unintentional killing can occur in the course of imperfect self-defense. The female defendant in Cameron was threatened by a larger male assailant. She stabbed him in the leg with a folding knife, which severed an artery, causing death. The defendant testified that she was trying to get away from the man, who had slapped her, and that she did not intend to stab him. (Id. at pp. 597-598.) Cameron involved an instruction that voluntary intoxication could not negate implied malice, which improperly implied that the jury should disregard the evidence of intoxication for purposes of deciding whether the defendant acted with conscious disregard for life. The court held that the improper instruction on voluntary intoxication could have been material to the imperfect self-defense theory, because it could have explained the defendant's objectively unreasonable belief. (Id. at p. 601.) Cameron does not support appellant's request for a special instruction linking involuntary manslaughter with unreasonable self-defense.
Appellant argues that the court in People v. Ceja (1994) 26 Cal.App.4th 78 [31 Cal.Rptr.2d 475] reversed a conviction because the trial court failed to instruct on voluntary and involuntary manslaughter "on an imperfect self-defense theory." Defendant in Ceja thought he saw a gun in the hand of a rival gang member, and fired his own gun, claiming self-defense and unreasonable self-defense. (Id. at pp. 85-86.) The trial court refused to instruct on either type of manslaughter. Quoting from Glenn, the Court of Appeal stated that the Flannel defense may support a verdict of voluntary or involuntary manslaughter depending on the existence of an intent to kill. (Ceja, supra, at p. 86.) Like the previous cases, this case does not couple involuntary manslaughter with Flannel, but merely notes that the element of intent to kill is what differentiates voluntary from involuntary manslaughter.
Finally, appellant quotes a footnote from People v. Dixon (1995) 32 Cal.App.4th 1547, 1557, footnote 5 [38 Cal.Rptr.2d 859] which distinguishes Glenn. In that footnote, the Dixon court stated: "However, in Glenn, our colleague Associate Justice Earl Johnson correctly drew the bright line of demarcation between the mental states necessary for voluntary and involuntary manslaughter verdicts premised on imperfect self-defense ...." The Dixon court gave two examples, the first in which a woman has an actual but unreasonable fear that her employer is going to kill her. In response, she kills him with two shotgun blasts. The court noted that the woman acts intentionally to kill her employer, as a result of her actual belief in the existence of an imminent harm. This scenario would support a verdict of voluntary manslaughter, based on imperfect self-defense. The second scenario presented in the Dixon footnote involved the same woman, only she had a knife, heard her employer behind her, thought he was about to grab her, turned, and the employer "got struck." In the second scenario, the court stated there was no intent to kill, which would make involuntary manslaughter a possible verdict. (Id. at pp. 1557-1558, fn. 5.) As noted by the Dixon court, the key point in these two hypotheticals is that the second killing was unintentional. Thus, although the court noted that in the second case, the woman thought the man was going to grab her, there was no need for a special instruction on the unreasonable self-defense theory in the second instance, for the only thing that distinguished it from the first scenario was that the killing was unintentional.
None of the cases cited by appellant concerned a failure to give a special instruction linking the Flannel defense to involuntary manslaughter. The reason for this is that the Flannel defense, like heat of passion, has no special bearing on the crime of involuntary manslaughter. It neither allows a conviction of this crime, nor prevents one. As was stated in Glenn, a conviction of voluntary or involuntary manslaughter depends on the existence of an intent to kill, and not on a belief in the need for self-defense. Appellant argues that the verdict of voluntary manslaughter indicates that the jury accepted the Flannel defense. He contends that it was error not to allow the jury to consider involuntary manslaughter "on the same theory." There was no instruction, however, that prevented the jury from considering involuntary manslaughter. The jury was instructed on the key issue, which was the presence of an intent to kill. If the jury believed appellant's story, that he slipped on a rug and the victim fell on top of appellant's knife, it was instructed in a manner that would have allowed a verdict of involuntary manslaughter. This scenario, however, does not turn on a Flannel defense, but on a lack of intent. Thus, the jury could use Flannel to reduce murder to manslaughter, but would have to make the additional finding that appellant lacked the intent to kill to reduce it to involuntary manslaughter.
Appellant's jury was instructed on all appropriate defenses and on the lesser included offenses of voluntary and involuntary manslaughter. There was no error.
B. -E. *
…………………………………………………………………………………………………………………
F. Lack of Jury Waiver on Charged Prior Conviction
After the verdict, and before the court dismissed the jury, the prosecutor reminded the court that there was a prior serious felony charged. The prosecutor asked if the jury was waived on the prior, and defense counsel said "yes." After the jury left, the court stated, again in defendant's presence, that a jury trial was waived on the prior serious felony. The matter was tried by the court and found true. On appeal, appellant argues that a waiver of his constitutional right to a jury trial cannot be implied from conduct, and must be personally made.
The issue of whether the failure to obtain an express personal waiver of a jury on a prior conviction is reviewable in the absence of an objection in the trial court was recently decided by our Supreme Court in People v. Vera (1997) 15 Cal.4th 269 [62 Cal.Rptr.2d 754, 934 P.2d 1279]. In Vera, the court held that "[u]nder well-settled principles of appellate procedure, defendant's failure to object in the trial court precludes him from raising the claim for the first time on appeal. [Citation.]" (Id. at p. 272.) Because a claim of deprivation of the right to a jury trial on prior prison term allegations "does not implicate the state or federal constitutional right to jury trial or the federal due process clause ...." the court concluded that the claim must be preserved for review by an objection below. Since appellant herein did not object when his counsel waived a jury trial on the prior, he may not argue this issue on appeal.
III.
Conclusion
The judgment is affirmed.
Stein, Acting P. J., and Swager, J., concurred.