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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Diego Gonzales RAMIREZ, Defendant and Appellant.

No. B035152.

Decided: November 16, 1989

Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, and Albert C. Cardenas, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Mark Alan Hart, Supervising Deputy Atty. Gen., and Frederick Grab, Deputy Atty. Gen., for plaintiff and respondent.

Charged in an information with murder, defendant was found guilty by a jury of second degree murder.   He appeals the judgment of conviction entered on the jury's verdict.   We affirm.

Viewing the evidence in the light most favorable to upholding the judgment according to the rule governing appellate review (People v. Johnson (1980) 26 Cal.3d 557, 576–578, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649), the following facts emerge.

Defendant, while armed with a handgun which he carried in his waistband, visited a bar in Long Beach.   Later, upon leaving, he was followed by the victim.   As defendant reached the door, he suddenly turned and fired two shots at the victim killing him.   When the victim's brother, who was in the bar, started toward where the victim was lying, defendant stated:  “Don't get involved or I'll kill you too.”

Defendant, at trial, essentially claimed to have acted in self defense.   He testified that the victim menaced him with a six-inch long knife and demanded money.   According to the defendant he produced the gun in response to an attack upon him with the knife although he claimed that he did not intend to fire the gun.   Apparently, no one else saw the victim menace defendant in anyway.   The jury obviously rejected defendant's claim of justification or excuse.

Thus, the objective facts establish that defendant intentionally and without justification used a pistol at close range and fired two shots into the victim.

Ignoring those facts and engaging in a fanciful semantical exercise, defendant suggests that somehow, absent certain challenged jury instructions which we will discuss, infra, the jury could have found an absence of malice in this scenario and thus returned a verdict of manslaughter.

Murder, of course, is an unlawful killing of a human being with malice aforethought.  (Pen.Code, § 187, subd. (a).)  The killing is unlawful if it is neither justifiable nor excusable.

 The state of mind or mens rea which distinguishes murder from manslaughter is an amorphous one called “malice.”   Malice inheres in an intent to kill or in any other state of mind which the courts or Legislature have found sufficiently culpable to constitute a killing as murder.

Perkins describes malice as an unjustifiable, inexcusable, and unmitigated man-endangering state of mind.  (Perkins on Criminal Law (1969 2d ed.) at p. 48.)

In California, Penal Code section 188 provides:  “․ [Malice] is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

In People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, the state Supreme Court attempted to further refine the concept by declaring that malice may be implied from the doing of “ ‘ “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ”  ․ [Citations.]'   Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.  [Citation.]”   (Id. at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis added.)

Here, the jury was instructed as per CALJIC No. 8.11 which tracks the above quoted language from Watson verbatim with the single exception that in place of “phrased in a different way” the instruction merely substituted the word “or”.

Defendant contends that this substitution erroneously told the jury that the second phrase was an alternate definition of malice that omits the requirement that a defendant know and appreciate the danger of his conduct.

Of course, the intentional firing of a gun at an individual at close range, as is the case here, is conduct which anyone in possession of his faculties would realize poses a threat of serious bodily injury or death.

In any event, a reasonably intelligent reading of the two phrases of the instruction leads inescapably to the conclusion that they each mean the same thing.   By using the words “phrased in another way” the Supreme Court that crafted the language said that they mean the same thing.   Substituting the word “or” changes nothing.   No further analysis is necessary.

Next, defendant complains of the court's instructions concerning the jury's methodology in reaching its verdict.

 At the heart of this complaint is CALJIC No. 8.75 (see Appendix A) which was read to the jury before deliberations began.   At one point in the deliberations the jury did advise the court that it was “deadlocked” as to the charge of second degree murder.   The trial court, in the mildest of terms, simply urged the jury to deliberate further.   The jury did so and was able to reach a unanimous verdict.

In our opinion, CALJIC No. 8.75 is based on a misreading of and overreaction to the Supreme Court's opinion in Stone v. Superior Court (1982) 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809.

In Stone, the Court was dealing with a case in which defendant sought to avoid a second trial following a mistrial which was declared when the jury failed to agree on a verdict.

There, the court simply held that the constitutional prohibition against double jeopardy requires that a trial court accept a partial verdict of acquittal, whether actual or implied, as to a charged offense even though the jury is unable to agree as to any lesser included offenses.

In People v. Kurtzman (1988) 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572, the Supreme Court attempted to clarify the holding in Stone.   The Kurtzman Court essentially held that there was no requirement that the jury be instructed to deal with the charged offenses and the included offenses in rigid isolation and in descending order.   In so doing, the Court, while appearing to approve CALJIC No. 8.75, in reality damned it with faint praise.   We find nothing in Stone or Kurtzman to indicate that the instruction CALJIC No. 8.75 should be used routinely in every case involving lesser included offenses.   It should come into play only when the jury has indicated its inability to reach a verdict and the need for such instruction becomes apparent in order to avoid future jeopardy problems.

Here, we do not deal with either a double jeopardy question, a partial verdict or a jury disagreement.   Defendant was convicted by unanimous verdict of second degree murder which, of course, is tantamount to an acquittal of first degree murder.   While CALJIC No. 8.75, when given in advance of the jury's deliberation, tends to introduce an unnecessary and possibly confusing concept, defendant is in no position to complain.   He faces no threat of double jeopardy and the evidence clearly supports the verdict of the jury.

The only evidence that the killing was anything less than murder came from defendant's own mouth.   That evidence, if believed, would have entitled defendant to an acquittal.   The jury's rejection of that evidence eliminated any possibility of a manslaughter verdict.   No verdict more favorable to defendant was possible notwithstanding defendant's claimed perception of error.

The judgment is affirmed.


COMPTON, Associate Justice.

ROTH, P.J., and GATES, J., concur.

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