PEOPLE v. COX

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

The PEOPLE, Plaintiff and Respondent, v. Julius Lamar COX, Defendant and Appellant. IN RE: Julius Lamar COX on Habeas Corpus.

Nos. B118572, B110130.

Decided: May 07, 1998

David B. Harrison, under appointment by the Court of Appeal, Belmont, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

In People v. Wells (1996) 12 Cal.4th 979, 50 Cal.Rptr.2d 699, 911 P.2d 1374, our Supreme Court resolved the issue of whether an unlawful act which underlies the offense of involuntary manslaughter must be inherently dangerous, that is, dangerous in the abstract, or dangerous under the circumstances of its commission.   The Court ruled that “the offense must be dangerous under the circumstances of its commission.   The inherent or abstract nature of a misdemeanor which underlies an involuntary manslaughter charge is not dispositive.”  (Id. at p. 988, 50 Cal.Rptr.2d 699, 911 P.2d 1374.)

We understand the Wells holding to be limited to those charges of involuntary manslaughter which are based on an unlawful act committed with criminal negligence.   Consequently, we here hold that, when the misdemeanor underlying the involuntary manslaughter offense is committed with criminal intent, as opposed to criminal negligence, the “dangerousness” of the unlawful act is irrelevant.   Thus, we conclude that the elements of the offense of involuntary manslaughter in this case were simply that the defendant committed a battery which caused the victim's death.

Part I

Appellant Julius Lamar Cox was convicted, following a jury trial, of one count of involuntary manslaughter in violation of Penal Code section 192, subdivision (b).1  Appellant admitted that he had suffered two prior convictions within the meaning of section 667.5, subdivision (b).   The trial court sentenced appellant to a total term of five years in prison, consisting of the mid-term of three years for the involuntary manslaughter conviction, plus two one-year enhancement terms for the section 667.5, subdivision (b) allegations.

Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support his conviction for involuntary manslaughter and that the trial court improperly instructed the jury that battery is an inherently dangerous misdemeanor for purposes of the crime of involuntary manslaughter.   Appellant has also filed a petition for writ of habeas corpus in which he claims that his trial counsel's failure to object to the definition of involuntary manslaughter constituted ineffective assistance of counsel.   We deny the petition and affirm the judgment.

Facts

In the early morning hours of August 22, 1996, after drinking alcohol and smoking crack cocaine, Evelonia Hunter and Dwayne Spann ran into appellant and Steve Vickers on the driveway of Hunter's motel.

Hunter and Vickers, her former boyfriend, got into an argument, and Vickers spat in Hunter's face.   Vickers also slapped Spann in the face with his left hand.   Spann moved back a few inches.   Appellant walked in between Spann and Hunter.   Hunter said that she was going to tell the motel manager, and began to turn towards the manager's officer.

As Hunter was turning, she saw appellant strike Spann with a solid blow on the right side of his head, using his fist.   Spann had not hit appellant or Vickers.   Spann fell to the cement driveway.   He was knocked unconscious.   Appellant and Vickers fled.

Hunter tried to rouse Spann by touching his face and calling his name.   After two or three minutes, Spann regained consciousness, and Hunter managed to get him to stand up.   He was still off balance and was unable to walk by himself.   Hunter helped him move about 20 feet to a brick wall, where he sat for two to three minutes.   Hunter then helped Spann walk the remaining 30 feet to her motel room.

In the room, Hunter and Spann sat on the bed, and talked for a while.   Spann was unable to speak clearly;  his speech, which had previously been normal, was slow and slurred.   Spann leaned against the bed while he helped Hunter prepare the bed for sleep.   Spann was still off balance.   Hunter asked Spann if he was all right, and if he wanted to call 911.   Spann replied that he did not want to call 911.   Spann and Hunter went to sleep between 3 and 4 a.m.

Hunter woke up at about 6 or 6:30 a.m. Spann was still sleeping.   Hunter was unable to awaken Spann from his sleep, although Spann did cough and move his hands.

The fire department arrived;  one of the men in the ambulance told Hunter that Spann was half dead.   Spann was taken to a hospital where he died at approximately 8 a.m. that same day.

Part II**

Part III

2. Manslaughter instruction

 Appellant contends that the trial court erred in instructing the jury on the elements of involuntary manslaughter, and that this error is reversible per se.   Specifically, appellant contends that the trial court should have instructed the jury that it was required to find that battery, the unlawful act which resulted in the killing, was dangerous under the circumstances of its commission.   Appellant further contends that his trial counsel's failure to object to the instruction constituted ineffective assistance of counsel.   We find no reversible error, and no ineffective assistance of counsel.

 The trial court instructed the jury that the killing was unlawful if it occurred “[d]uring the commission of a misdemeanor which is inherently dangerous to human life, namely, the offense of Battery․”  As appellant points out, this is not a correct statement of the law, since battery is not an inherently dangerous offense.  (People v. Wells (1996) 12 Cal.4th 979, 988, 50 Cal.Rptr.2d 699, 911 P.2d 1374 (hereafter “Wells ”) [neither assault nor battery is an inherently dangerous misdemeanor].)

Relying on Wells, supra, appellant contends that in order for a misdemeanor to qualify as an unlawful act within the meaning of the involuntary manslaughter statute, the misdemeanor must be “dangerous under the circumstances of its commission.”  (Wells, supra, 12 Cal.4th at p. 988, 50 Cal.Rptr.2d 699, 911 P.2d 1374.)   Because the jury instructions given below did not present that issue to the jury, but rather stated that battery was inherently dangerous as a matter of law, appellant argues that an element of the offense of involuntary manslaughter was removed from the jury, resulting in per se reversible error.

Section 192, subdivision (b), which defines involuntary manslaughter, requires only that the unlawful killing occur “in the commission of an unlawful act, not amounting to a felony.”  (§ 192, subd. (b).)  “It has been repeatedly held that where a person, in committing an assault and battery ․ unintentionally causes the death of his victim, the crime is [involuntary] manslaughter.  [Citations.]”  (People v. McManis (1954) 122 Cal.App.2d 891, 898, 266 P.2d 134;  see also People v. Clark (1982) 130 Cal.App.3d 371, 382, 181 Cal.Rptr. 682;  People v. Morgan (1969) 275 Cal.App.2d 603, 608, 79 Cal.Rptr. 911;  People v. Tophia (1959) 167 Cal.App.2d 39, 47-48, 334 P.2d 133;  People v. Le Grant (1946) 76 Cal.App.2d 148, 152, 172 P.2d 554;  People v. Miller (1931) 114 Cal.App. 293, 301, 299 P. 742.)   As a review of the foregoing cases makes clear, this conclusion is not dependent on a finding that the battery underlying the involuntary manslaughter charge was dangerous, either in the abstract or in its commission in the particular case.   Moreover, this rule is not unique to California:  “it is almost universally held ․ that one is guilty of involuntary manslaughter who intentionally inflicts bodily harm upon another person, as by a moderate blow with his fist, thereby causing an unintended and unforeseeable death to the victim (who, unknown to his attacker, may have a weak heart or a thin skull or a blood deficiency).”  (2 LaFave & Scott, Substantive Criminal Law (1986) Crimes Against the Person, § 7.13(d), p. 296.)

 Section 20 of the Penal Code provides that “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”   Thus, criminal intent or its substitute, criminal negligence, is “an invariable element of every crime unless it is excluded expressly or by necessary implication.”  (People v. Stuart (1956) 47 Cal.2d 167, 171, 302 P.2d 5 (hereafter “Stuart ”).)

In Stuart, supra, a pharmacist violated a Health and Safety Code provision by unwittingly preparing and selling an adulterated and misbranded drug.   He was convicted of the crime of involuntary manslaughter.   Our Supreme Court reversed his conviction, concluding that the requirements of section 20 had not been met.

The defendant in Stuart had filled a prescription for sodium citrate from a bottle so labeled which actually contained some sodium nitrite.   The defendant was unaware that the bottle was mislabeled, and the two substances, virtually identical in appearance, could not be distinguished absent a chemical analysis.   The patient died from the effects of sodium nitrite after ingesting the prescribed medication.   However, there was no evidence “that would justify an inference that the defendant knew or should have known that the bottle labeled sodium citrate contained sodium nitrite.”  (People v. Stuart, supra, 47 Cal.2d at p. 171, 302 P.2d 5.)

The Supreme Court concluded that the “act” underlying the offense of involuntary manslaughter “must be committed with criminal intent or criminal negligence to be an unlawful act within the meaning of section 192.”   Because the pharmacist neither intentionally nor through criminal negligence prepared or sold an adulterated or misbranded drug, a requisite to criminal liability was absent, and the manslaughter conviction could not stand.   The Stuart Court summarized its analysis by stating, “To be an unlawful act within the meaning of section 192, therefore, the act in question must be dangerous to human life or safety and meet the conditions of section 20.”   (Stuart, supra, 47 Cal.2d at p. 173, 302 P.2d 5.)

This last sentence has caused a good deal of confusion in the law of involuntary manslaughter, since some courts, interpreting Stuart, have added a requirement of “dangerousness” to the unlawful act underlying the crime.   (See, e.g., People v. Wright (1976) 60 Cal.App.3d 6, 131 Cal.Rptr. 311;  see also CALJIC (6th ed.1996), No. 8.45.)   The Supreme Court recently addressed this confusion in Wells, supra, 12 Cal.4th 979, 50 Cal.Rptr.2d 699, 911 P.2d 1374.   There the Court explained:  “In stating that ‘the act in question must be dangerous to human life or safety and meet the conditions of section 20’ (Stuart, supra, 47 Cal.2d at p. 173, 302 P.2d 5), we did not in Stuart require that ‘the unlawful act, not amounting to felony,’ constitute an ‘inherently dangerous act,’ or be malum in se.   Instead, we required that commission of the unlawful act involve criminal culpability, i.e., have been done in a dangerous manner.”  (Wells, supra, 12 Cal.4th at p. 987, 50 Cal.Rptr.2d 699, 911 P.2d 1374.)  “Thus, Stuart does not require an act ‘inherently dangerous in the abstract’ for any form of manslaughter.   It merely requires that the unlawful act causing death be committed ‘through criminal negligence.’  (Stuart, supra, 47 Cal.2d 167, 174 [302 P.2d 5].)”   (Wells, supra, 12 Cal.4th at p. 988, 50 Cal.Rptr.2d 699, 911 P.2d 1374.)   “We are satisfied therefore that the offense must be dangerous under the circumstances of its commission.   The inherent or abstract nature of a misdemeanor which underlies an involuntary manslaughter charge is not dispositive.”  (Ibid.)

From the foregoing language of Wells, appellant concludes that an element of the offense of involuntary manslaughter is an unlawful act which was dangerous under the circumstances of its commission.   Because the jury was not asked to determine if his battery of the victim was dangerous under the circumstances, appellant argues that his involuntary manslaughter conviction must be reversed.

Appellant misunderstands Wells.   In both Stuart and Wells, the defendants did not harbor criminal intent when committing the unlawful act at issue.   That is, when the pharmacist in Stuart mislabeled the prescription medicine, he did so without criminal intent.   Likewise, in Wells, the unlawful act at issue was driving in excess of the maximum speed limit, an act requiring no criminal intent.   In order to attach criminal liability to conduct done without criminal intent, the defendant must have acted with criminal negligence.  (Pen.Code, § 20;  Stuart, supra, 47 Cal.2d at p. 173, 302 P.2d 5 [act underlying involuntary manslaughter offense “must be committed with criminal intent or criminal negligence to be an unlawful act within the meaning of section 192”].)   The Supreme Court in Wells defined criminal negligence as an act “dangerous under the circumstances of its commission.”  (Wells, supra, 12 Cal.4th at p. 988, 50 Cal.Rptr.2d 699, 911 P.2d 1374.)   It did not speak to those unlawful acts which need not be committed negligently because they are done with criminal intent, and thus satisfy the first alternative of section 20.

That the Wells Court did not intend to impose a “dangerous in the commission” requirement on unlawful acts which are committed with criminal intent is evident from the Court's acknowledgment that, while assault and battery are not inherently dangerous misdemeanors, they “may be predicates for a conviction of involuntary manslaughter under section 192(b).”  (Wells, supra, 12 Cal.4th at p. 988, 50 Cal.Rptr.2d 699, 911 P.2d 1374.)   This is so because the criminal culpability for involuntary manslaughter which is required by section 20 is established by the finding that the defendant committed a battery.   Because the offense of battery necessarily involves criminal intent, no additional finding of criminal negligence is necessary.

 In sum, we do not believe that the “dangerousness” of the unlawful act is an element of the crime of involuntary manslaughter when the unlawful act is committed with criminal intent.   Rather, we believe that the element of “dangerousness” applies only to those unlawful acts which do not require a criminal intent, but which, because conducted in a dangerous, criminally negligent manner, encompass criminal culpability.

We conclude that, although the manslaughter jury instruction was in error, that error was harmless in this case:  The jury could find appellant guilty of battery only if it determined that he willfully and unlawfully inflicted force on the victim.   Having found that appellant committed the battery, his criminal intent was established for purposes of section 20.   Thus, the question of the dangerousness of the battery under the circumstances of this case was not an element of the charged offense, and was therefore not improperly removed from the jury's consideration.

Part IV***

Part V

Disposition

The petition for writ of habeas corpus is denied.   The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

ARMSTRONG, Associate Justice.

TURNER, P.J., and GRIGNON, J., concur.