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Court of Appeal, First District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Nathaniel Murry LEE, Defendant and Appellant.

No. A071862.

Decided: April 23, 1997

Michael Satris by Appointment of the Court of Appeal, Bolinas, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Catherine A. Rovlin and Jeremy Friedlander, Deputy Attorney General, for Plaintiff and Respondent.

Nathaniel Murry Lee appeals his conviction by jury trial of second degree murder.  (Pen.Code, § 187.) 2  The jury also found he personally used a deadly weapon in committing the murder. (§ 12022, subd. (b).)  He contends the evidence established voluntary manslaughter as a matter of law, and that the court committed instructional and evidentiary error.


Appellant has never denied killing David Lamun, the victim in this case, but claims to have acted in self-defense, or at most without malice during the heat of passion that defines the crime of voluntary manslaughter.   The facts relevant to the issues raised on appeal are contained within our discussion thereof.


I **


Appellant next contends, and the People concede that the jury was incorrectly instructed on voluntary manslaughter.   Appellant contends the error is prejudicial and the People contend it is harmless.

In addition to standard instructions on murder, self-defense, and justifiable and excusable homicide, the court instructed the jury on voluntary manslaughter and provocation pursuant to CALJIC Nos. 8.40 and 8.42.   CALJIC No. 8.40 states:  “Every person who unlawfully kills another human being without malice aforethought but with an intent to kill, is guilty of voluntary manslaughter in violation of [Penal Code section 192, subdivision (a) ]. [¶] There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.  [¶] In order to prove such crime, each of the following elements must be proved:  [¶] 1. A human being was killed, [¶] 2. The killing was unlawful, and [¶] 3. The killing was done with the intent to kill.  [¶] A killing is unlawful, if it was neither justifiable nor excusable.”

CALJIC No. 8.42 states:  “To reduce an intentional felonious homicide from the offense of murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such character and degree as naturally would excite and arouse such passion, and the assailant must act under the influence of that sudden quarrel or heat of passion.  [¶] The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of the ordinarily reasonable person in the same circumstances.   A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of an ordinarily reasonable person faced with the same situation.   Legally adequate provocation may occur in a short, or over a considerable, period of time.  [¶] The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.  [¶] If there was provocation, whether of short or long duration, but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed such provocation and had all the elements of murder, as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to manslaughter.”

Over appellant's objection, the court also gave the following special instruction requested by the prosecution:  “The concept of ‘sudden quarrel or heat of passion’ allows a defendant to reduce a killing from murder to manslaughter only in those situations where the provocation would trigger a homicidal reaction in the mind of an ordinarily reasonable person under the same facts and circumstances.  [Citations.]”  (Italics added).

The challenged instruction is derived from two cases, People v. Ogen (1985) 168 Cal.App.3d 611, 622, 215 Cal.Rptr. 16 (Ogen ), and People v. Superior Court (Henderson) (1986) 178 Cal.App.3d 516, 524, fn. 4, 223 Cal.Rptr. 741.   In neither case was the jury actually given the challenged instruction, and neither case concerned whether such language should be included within jury instructions.

Ogen considered whether CALJIC Nos. 8.40 and 8.42 apply to defendants with diminished capacity.  (Ogen, supra, 168 Cal.App.3d at p. 620-621, 215 Cal.Rptr. 16.)   In determining the applicability of the standard instructions Ogen concluded that the Legislature allowed a defendant to reduce a killing from murder to manslaughter “only in those situations where the provocation would trigger a homicidal reaction in a reasonable person.”  (Id. at p. 622, 215 Cal.Rptr. 16.)

Henderson concerned whether the People were entitled to a writ of mandate ordering the superior court to reinstate a murder charge because a magistrate's finding that a killing occurred during the defendant's heat of passion and/or sudden quarrel was a legal conclusion not binding on the superior court.   (Henderson, supra, 178 Cal.App.3d at 520, 522-524, 223 Cal.Rptr. 741.)   In discussing that issue Henderson stated in a footnote:  “The concept of ‘heat of passion’ allows a defendant to reduce a killing from murder to manslaughter only in those situations where the provocation would trigger a homicidal reaction in the mind of an ordinarily reasonable person under the given facts and circumstances.  [Citation.]”  (Id. at p. 524, fn. 4, 223 Cal.Rptr. 741.) For this proposition Henderson cited People v. Jackson (1980) 28 Cal.3d 264, 305-306, 168 Cal.Rptr. 603, 618 P.2d 149, which does not contain the “homicidal reaction” language.

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, but with an intent to kill (§ 192;  People v. Barton (1995) 12 Cal.4th 186, 199, 47 Cal.Rptr.2d 569, 906 P.2d 531), and is classified as voluntary manslaughter when committed upon a sudden quarrel or heat of passion. (§ 192, subd. (a).)  It is clear from the Ogen and Henderson cases upon which the prosecution relied below for the challenged instruction, that those courts were using the term “homicidal reaction” with reference to the intent to kill which is an element of manslaughter, and not to the element of malice, which is a necessary component of the crime of murder.

The problem caused by the challenged special instruction in this case is that the court also instructed with CALJIC No. 8.00, which states:  “Homicide is the killing of one human being by another, either lawfully or unlawfully.   Homicide includes murder and manslaughter, which are unlawful, and the acts of excusable and justifiable homicides, which are lawful.”   Thus, under the court's instructions the jury was advised that a killing engendered by provocation sufficient to trigger a “homicidal reaction” may be manslaughter, but would also constitute murder, because homicide includes murder.   Since malice is an element of murder and distinguishes murder from manslaughter, a “homicidal reaction” under the given instructions can be defined as a “murderous reaction,” and, if so, would necessarily preclude a finding of manslaughter due to the presence of malice.

When the jury is instructed on alternate theories of guilt, one of which is legally correct and the other legally incorrect, and the reviewing court is unable to determine the theory upon which the guilty verdict was based, the conviction must be reversed if the legally incorrect theory could not as a matter of law support the conviction.  (People v. Harris (1994) 9 Cal.4th 407, 419, 37 Cal.Rptr.2d 200, 886 P.2d 1193;  People v. Green (1980) 27 Cal.3d 1, 69, 164 Cal.Rptr. 1, 609 P.2d 468.)

The question of murder or manslaughter was close.   Appellant's defense was that the victim intervened in an argument between appellant and another person, attacked him with a chair leg, and he was simply defending himself against the attack.   The victim's mother testified that he kept the chair leg as a weapon for self-defense.   There was expert medical testimony that the victim suffered from paranoid schizophrenia, and used cocaine and methamphetamine which could have exacerbated his mental illness and caused aggressive behavior.   He was suffering delusions and hearing voices shortly before his death.   There is no evidence of any preexisting animosity between appellant and the victim, other than an argument a few days previously about which the record is otherwise silent, and the prosecution's own evidence revealed that the killing occurred during an argument which developed rather suddenly.   Under all the circumstances, we cannot find the error harmless.

III ***


The judgment is reversed.   If the People do not move the trial court within 30 days of issuance of the remittitur herein to retry appellant on the original charges, his conviction shall be reduced to voluntary manslaughter, whereupon appellant shall be rearraigned for judgment and resentenced for voluntary manslaughter.  (See, e.g., People v. Bridgehouse (1956) 47 Cal.2d 406, 414, 303 P.2d 1018;  People v. Benway (1985) 164 Cal.App.3d 505, 513, 210 Cal.Rptr. 530.)


2.   Unless otherwise indicated, all further statutory references are to the Penal Code.

FOOTNOTE.   See footnote 1, ante.

FOOTNOTE.   See footnote 1, ante.

HANING, Associate Justice.

PETERSON, P.J., and JONES, J., concur.