PEOPLE v. McALROY

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick Henry McALROY, Defendant and Appellant.

No. E006388.

Decided: June 12, 1990

Maureen J. Shanahan,Pacific Palisades, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Pat Zaharopoulos and Louis R. Hanoian, Supervising Deputy Attys. Gen., Lilia E. Garcia and Roy W. Hewitt, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

A jury convicted Patrick McAlroy of attempted first degree murder (Pen.Code, §§ 664/187) during which he used a knife (Pen.Code, § 12022(b)) and inflicted serious bodily injury (Pen.Code, § 12022.7).   The jury then found McAlroy was sane at the time he committed the offense.   He was sentenced to prison and appeals, claiming the jury was misinstructed during the penalty phase and the prosecutor committed misconduct during the sanity phase.   We reject his contentions and affirm, while directing the trial court to correct an error in the Abstract of Judgment.

FACTS

McAlroy went to the home of a man who, years before, had witnessed McAlroy hit a car and leave the scene.   When the man answered the door, McAlroy stabbed him, then continued to attack him until he was subdued by the victim and his son.

A psychologist testifying for the defense opined that McAlroy was in a “fugue” state during the attack and therefore probably did not deliberate and premeditate the offense.   Several circumstances surrounding the incident, however, were inconsistent with the doctor's analysis and he admitted that much of his opinion was dependent on his completely believing what McAlroy told him during a one-hour interview shortly before trial.   A psychologist called by the prosecution testified to the contrary that McAlroy knew exactly what he was doing at the time and attacked the victim because he feared and hated him.

1. Jury Instructions

a. Manslaughter

 The jury was instructed that it could convict McAlroy of first or second degree attempted murder, or of assault with a deadly weapon or not guilty of any charges.   They were instructed that in order to return a verdict of guilty on either degree of attempted murder, they had to conclude that he had express malice aforethought.

McAlroy proffered the following instruction on manslaughter:

“A person who attempts to kill another person as the result of, or under the influence of, a mental disorder or mental dysfunction which obscures his reasoning to the extent that he does not form express malice aforethought is guilty of manslaughter.”

Relying solely on People v. Molina (1988) 202 Cal.App.3d 1168, 249 Cal.Rptr. 273, a Second District, Division Four, opinion, McAlroy argues that the trial court erred in refusing to give his proffered instruction.   We disagree with Molina and with McAlroy's contention.

In Molina, there was clear evidence that the defendant had a severe mental defect at the time she murdered her infant and attempted to take her own life.   The jury was instructed that it could consider evidence of her mental defect in deciding if she formed the specific intent to kill or malice aforethought or if she premeditated or deliberated.   Despite the strong evidence of her mental defect and the instructions that it could negate the requisite mental states, the trial court refused defense proffered instructions on manslaughter, which would have given the jury a conviction option other than first or second degree murder or acquittal.

The court concluded that based on Penal Code section 28's allowance of the admission of evidence of a mental defect “on the issue of whether or not the accused actually formed a required” mental state, the jury should have been given the option of manslaughter if it concluded that the mental defect caused the defendant to not premeditate, deliberate or have malice aforethought.   The Molina court cited other cases it contended supported its conclusion.   One was a concurring opinion by a justice of the Third District on an issue not addressed by the majority.   The other two, In re Thomas C. (1986) 183 Cal.App.3d 786, 228 Cal.Rptr. 430 and People v. Lynn (1984) 159 Cal.App.3d 715, 206 Cal.Rptr. 181, do not support Molina 's position.   In Thomas, evidence of a mental defect was used to support jury instructions for second degree murder because of the possibility that the defendant's mental state prohibited him from deliberating and premeditating.  Lynn merely states that Penal Code section 28 permits evidence of a mental defect in to negate the requisite mental states.   We have no quarrel with either Thomas or Lynn.   We do, however, part company with Molina 's quantum leap from section 28 to the perpetuation of judicially-created definition of manslaughter, which we believe has long since been statutorily abrogated.

In People v. Spurlin (1984) 156 Cal.App.3d 119, 202 Cal.Rptr. 663, our colleagues at Division One noted that a line of cases involving diminished mental capacity gave birth to a non-statutory definition of voluntary manslaughter in which “malice may be rebutted by a showing of diminished mental capacity instead of the provocatory conduct of the victim.”  (Id., at p. 125, 202 Cal.Rptr. 663.)   However, the Spurlin court held, with the abrogation of diminished capacity through Proposition 8, the Legislature “eliminate[d] the judicially created concept of ‘non-statutory voluntary manslaughter.’ ”  (Id., at p. 128, 202 Cal.Rptr. 663.)   It only makes sense that one of the byproducts of diminished capacity—the reduction of murder to manslaughter due to a mental defect—should fall with the elimination of diminished capacity itself.1

To the extent McAlroy's proffered instruction invited the jury to find him guilty of involuntary manslaughter, it is completely unsupported by the record.   The defense psychologist testified that McAlroy, even in his “fugue” state, had the intent to kill at the time of the stabbing.   Thus, he could not possibly have been found guilty of involuntary manslaughter, which requires that the homicide occur without the intent to kill.   We find no error in the trial court's refusal to give the proffered instruction.2

b. Mental Defect

The jury was instructed as to McAlroy's alleged mental impairment:

“Evidence has been received regarding a mental disease[,] mental defect or mental disorder of the defendant at the time of the offense charged in Count 1.   You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crime charged in Count 1 to wit, malice aforethought.”

“If the evidence shows that the defendant was suffering from a mental disease, mental disorder or mental defect at the time of the alleged offense, the jury may consider this evidence in determining whether the defendant engaged in premeditation or deliberation, as those terms have been defined for you, or harbored express malice aforethought.  [¶] If, from all the evidence, you have a reasonable doubt whether defendant formed those mental states you must give the defendant the benefit of the doubt and find he did not have such mental state.” 3

“A person who commits an act while unconscious is not guilty of a crime.  [¶] This rule of law applies to persons who are not conscious of acting but who perform acts while ․ suffering from a mental defect[,] disease or disorder․  [¶] Unconsciousness does not require that a person be incapable of movement.  [¶] Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged offense for which he is here on trial.   If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the crime was committed, he must be found not guilty.”

McAlroy proffered the following instruction:

“If you find from the evidence that the time the alleged crime was committed, the defendant had reduced mental functioning whether caused by mental defect or mental desease [sic ], you must consider what effect this reduced mental state had on the defendant's ability to form any of the specific mental states that are essential elements of murder and voluntary manslaughter.

“Thus, if you find that the defendant's mental functions were reduced to the extent that you have a reasonable doubt whether he did, maturely and meaningfully, premeditate, deliberate, and reflect upon the gravity of his contemplated act, or form an intent to kill, you cannot find him guilty of a willful, deliberate and premeditated attempted murder of the first degree.

“Also, if you find that the defendant's mental functions were reduced to the extent that you have a reasonable doubt whether he did form the mental states constituting express aforethought, you cannot find him guilty of attempted murder of either the first or second degree.

“If you have a reasonable doubt whether he formed the intention to unlawfully kill a human being, or whether a mental desease [sic ] or defect, he was unable to act in accordance with law you cannot find he acted with express malice.”

Of course, to the extent the proffered instruction refers to voluntary manslaughter, it is unnecessary to reiterate the points already made.   As to the remainder of McAlroy's instruction, the first three paragraphs were covered by the above-quoted instructions given by the court.   McAlroy provides us with no legal precedent supporting the last paragraph.   Moreover, it is clear the jury rejected McAlroy's contention he was in a fugue state, therefore unconscious.   McAlroy's point has no merit.

2. Prosecutorial Misconduct

At the beginning of argument to the jury during the sanity phase, the prosecutor said:

“․ I think it is very important we make clear what we're to decide now, what the yes/no question is now.  [¶] It is yes or no, is he not guilty by reason of insanity?  [¶] Now, some states have a different system than California.   They have four possible ways they can approach a criminal defendant.   Not guilty—They didn't do it—guilty, guilty but mentally ill, not guilty by reason of insanity.   And there's a certain logic to that because you can suppose that it makes sense to treat these four kinds of individuals differently.   You do want to treat the guilty but mentally ill differently than the straight guilty.   You can see how that would make sense.  [¶] In California, however, this fourth option, guilty but mentally ill, does not exist as a jury determination for you to decide.   You don't get to draw the line between guilty and guilty but mentally ill and decide who's on which side of it.  [¶] In California, you get to draw this line between the guilty but mentally ill and the not guilty by reason of insanity.  [¶] That does not mean California is inhumane or is not compassionate.   It's far from it.   But it's not what you as a juror, a jury, is here to decide.”

 McAlroy did not object to the prosecutor's reference to the laws of other states, nor did he request the jury be instructed to disregard the remarks.   He now contends the prosecutor committed misconduct in making them.   As the People correctly point out, prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade the jury.   The prosecutor's remarks were neither.   McAlroy contends that they created confusion in the minds of the jurors because they pointed out that other states find defendants guilty but mitigate punishment due to insanity.   Nothing on the record indicates that the jurors here were confused as to their function.   Immediately after making the remarks, the prosecutor explained that McAlroy was to remain “guilty” unless he carried his burden of proving that he was insane at the time he committed the offense, in which case he would be “not guilty by reason of insanity.”   The trial court instructed them similarly.   This was a correct statement of the law and of the jury's function.   Moreover, McAlroy's failure to object below forecloses his claim now.  (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)

DISPOSITION

The sentencing court imposed a one-year term for the knife-use enhancement and three years for inflicting serious bodily injury.   The Abstract of Judgment incorrectly reflects a two-year term for each.   The trial court is directed to amend the Abstract to accurately reflect its imposition of sentence.   In all other respects, the judgment is affirmed.

I concur in the result.   I concur with the determination made by the majority that:  (1) there was no error by the trial court in refusing to give a jury instruction on the lesser offense of attempted involuntary manslaughter (if such an instruction was actually requested by McAlroy),1 (2) there was no misconduct on the part of the prosecutor during final argument in the sanity phase of the trial, and (3) the verdict by the jury of guilty of attempted first degree murder was appropriate.   As the majority properly points out, the crime of involuntary manslaughter requires that an unlawful killing occur without both (1) an intent to kill and (2) malice aforethought.   The defense psychologist testified that McAlroy had the intention to kill at the time of the stabbing, even in his claimed “fugue state.”

I respectfully disagree with the analysis of the majority regarding the continued existence of the crime of non-statutory voluntary manslaughter.   The fact that the evidence appears to be undisputed that McAlroy had the intent to kill at the time of the stabbing does not necessarily establish the other necessary elements of murder, i.e. (1) premeditation and deliberation and (2) malice aforethought.   The distinguishing characteristic between murder and manslaughter is malice, rather than the presence or absence of an intent to kill.  (People v. Coad (1986) 181 Cal.App.3d 1094, 1106, 226 Cal.Rptr. 386;  People v. Ogg (1958) 159 Cal.App.2d 38, 50, 323 P.2d 117.)2

The conclusion reached by the majority that the trial court did not err in refusing an instruction requested by McAlroy on the lesser offense of attempted voluntary manslaughter is premised on the holding in People v. Spurlin, supra, 156 Cal.App.3d at p. 128, 202 Cal.Rptr. 663, to the effect that the judicially created concept of “non-statutory” manslaughter was eliminated with the abrogation of the diminished capacity defense through the passage of Proposition 8.   Even though the elimination of the crime of “non-statutory” voluntary manslaughter may have been one of the objectives of the promoters of Proposition 8, there is a serious question as to whether that objective was actually accomplished.

The court in Spurlin, supra, 156 Cal.App.3d at pp. 127–128, 202 Cal.Rptr. 663, concluded that the enactments of subdivision (b) of Penal Code section 28 in 1981 (by the Legislature) and subdivision (a) of Penal Code section 25 (by the People in passing Proposition 8 in 1982) had the effect of abolishing diminished capacity as a defense to murder.   That conclusion was also reached in People v. Jackson (1984) 152 Cal.App.3d 961, 968, 199 Cal.Rptr. 848.   The Spurlin court then leapt to the conclusion that a defendant in a prosecution for murder can no longer seek a reduction of a charge of murder to voluntary manslaughter by attempting to negate the presence of malice aforethought where there is no evidence of heat of passion or provocation.  (Spurlin, supra, 156 Cal.App.3d at p. 128, 202 Cal.Rptr. 663.)   The problem with this conclusion by the Spurlin court is that it only really considers the language of subdivision (b) of Penal Code section 28 and it virtually ignores the provisions of Penal Code sections 28, subdivision (a) and 29.

It is also interesting to note that because the defendant did not present any evidence of mental defect or disease in the Spurlin case, that court was not called upon to decide the principal issue raised in the instant appeal.  (Spurlin, supra, 156 Cal.App.3d at p. 128, 202 Cal.Rptr. 663.)   That issue is whether McAlroy was entitled under the facts of the case to an instruction which advised the jurors in the guilt phase that they could find him guilty of attempted voluntary manslaughter if they believed there was an intent to kill but that the other necessary elements of premeditation and deliberation and express malice aforethought were not established beyond a reasonable doubt.3

Even though the defense of diminished capacity is no longer available to reduce murder to manslaughter, a defendant still has the right pursuant to Penal Code sections 28, subdivision (a) and 29 “to show that a mental disease, defect or disorder prevented him from actually forming any required mental state, including intent.”  (People v. Leever (1985) 173 Cal.App.3d 853, 865–866, 219 Cal.Rptr. 581.)   Thus, a defendant can show the absence of malice—either express or implied—in this same manner.

Prior to the enactment of Penal Code sections 25, subdivision (a) and 28, subdivision (b), California clearly recognized a non-statutory variety of voluntary manslaughter.   The Spurlin court recognized that the definition of manslaughter has not been limited by California courts to the specific non-malicious acts spelled out in section 192.  (Spurlin, supra, 156 Cal.App.3d at p. 127, 202 Cal.Rptr. 663.)   The Spurlin court went on to state:  “A finding of provocation sufficient to reduce murder to manslaughter is not the sole means by which malice can be negated and voluntary manslaughter established.   As discussed above, under California law, a person who intentionally kills may be incapable of harboring malice aforethought because of a mental disease, defect or incapacitation.  (People v. Conley [ (1966) ] 64 Cal.2d 310, 318 [49 Cal.Rptr. 815, 411 P.2d 911].)  ‘Mental incapacitation’ has been liberally construed to include such things as ‘voluntary intoxication’ (People v. Mosher (1969) 1 Cal.3d 379, 391 [82 Cal.Rptr. 379, 461 P.2d 659] [citations] ), an honest but unreasonable belief the defendant is in imminent peril of loss of life or serious injury (People v. Flannel (1979) 25 Cal.3d 668, 679, 683 [160 Cal.Rptr. 84, 603 P.2d 1] [citations] ) and ‘high-wrought and enthusiastic emotion’ (People v. Borchers [ (1958) ] 50 Cal.2d 321, 329 [325 P.2d 97] ).”

Because the basic difference between murder and manslaughter (i.e. the presence or absence of malice) has remained the same even after the enactment of Penal Code sections 25 subdivision (a) and 28, subdivision (b), by logical necessity there still remains a crime which involves the unlawful killing of a human being which is not upon a sudden quarrel or heat of passion but in which malice has not been established.   This crime falls within the general statutory definition of manslaughter as indicated above—i.e. an unlawful killing of a human being without malice (Pen.Code, § 192).   However, because this crime does not fall within the statutory definition of voluntary manslaughter (Pen.Code, section 192, subd. (a)), by necessity it must be a non-statutory crime.   Even though the express purpose of subdivision (b) of Penal Code section 28 may have been both to abolish the diminished capacity defense and to eliminate the judicially created concept of “non-statutory voluntary manslaughter” as suggested by the Spurlin court (Spurlin, supra, 156 Cal.App.3d at p. 128, 202 Cal.Rptr. 663), the second objective appears to have failed because Penal Code section 192 is still part of our law.   Regardless of what one calls it, we still have a crime involving the non malicious unlawful killing of a human being.

In discussing the general subject of the crime of voluntary manslaughter Witkin and Epstein in their authoritative work on California Criminal Law reiterate the general rule that both murder and manslaughter require the intent to kill.  (Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 511, p. 578.)   They go on to state that what distinguishes voluntary manslaughter from murder is the absence of malice.  (Ibid.)  They then discuss methods the cases have recognized as negating malice, as follows:  “The cases have recognized not only adequate provocation, but also ‘an honest but unreasonable belief’ in the necessity of self-defense, as a method of negating malice and hence reducing the crime from murder to manslaughter.  (See People v. Flannel (1979) 25 Cal.3d 668, 674, 160 Cal.Rptr. 84, 603 P.2d 1 [citations.];  People v. Coad, supra, 181 Cal.App.3d at p. 1106, 226 Cal.Rptr. 386.)

“A third method of negating malice—proof that defendant's diminished capacity made him incapable of harboring malice—has also been recognized.  (See People v. Castillo (1969) 70 C.2d 264, 270 [74 Cal.Rptr. 385, 449 P.2d 449], [citations] [manslaughter resulting from diminished capacity is type of voluntary manslaughter which does not come within P.C. 192 definitions];  People v. Small (1970) 7 C.A.3d 347 [86 Cal.Rptr. 478] [citation];  People v. Fusselman (1975) 46 C.A.3d 289, 299 [120 Cal.Rptr. 282], [citation] [‘While difficult to comprehend, the law recognizes that a person may deliberate, premeditate and intend to kill his victim, yet not act with malice aforethought so that the maximum offense of which he could be found guilty would be voluntary manslaughter’].)  One of the express purposes for abolishing the defense of diminished capacity (supra, §§ 210, 211) was the elimination of this so-called “nonstatutory voluntary manslaughter,” and cases have said that adoption of P.C. 28 and passage of Proposition 8 have accomplished the purpose.  (See People v. Spurlin (1984) 156 C.A.3d 1106, 1107 [sic] [156 Cal.App.3d 119, 202 Cal.Rptr. 663], [citation];  People v. Coad, supra, 181 Cal.App.3d 1106, 1107, footnote 6 [226 Cal.Rptr. 386].)  However, since malice remains a required element of murder, proof of a fact which negates malice may still result in reduction of the crime to manslaughter.”  (1 Witkin & Epstein, supra, at p. 578.)

At the time it was written, the above quoted final conclusion reached by Witkin and Epstein was not supported by any appellate authority.   However, there is now appellate authority in the holding in the recent case of People v. Molina, supra, 202 Cal.App.3d 1168, 249 Cal.Rptr. 273.   As opposed to the fact situation in Spurlin, in Molina evidence was introduced by the defendant to rebut the prosecution's evidence as to malice.   (Id., at p. 1175, 249 Cal.Rptr. 273.)

The Molina court concluded that the language of section 28, subdivision (a), which permits evidence of mental disease, defect, or disorder on the issues of actual formation of specific intent, premeditation and deliberation, and malice “shows that the Legislature did not foreclose the possibility of a reduction from murder to voluntary manslaughter where malice is lacking due to mental illness, or a further reduction to involuntary manslaughter where intent to kill is not present for the same reason.”   (People v. Molina, supra, 202 Cal.App.3d at p. 1174, 249 Cal.Rptr. 273.)  (See also People v. Leever (1985) 173 Cal.App.3d 853, 865–866, 219 Cal.Rptr. 581;  People v. Whitsett (1983) 149 Cal.App.3d 213, 215–216, 220, 196 Cal.Rptr. 647.)

Two earlier cases which tend to support the conclusion reached by the Molina court are the cases of People v. Jackson, supra, 152 Cal.App.3d 961, 199 Cal.Rptr. 848 and People v. Whitler (1985) 171 Cal.App.3d 337, 214 Cal.Rptr. 610.   In Whitler the reviewing court (in reliance on Jackson) stated as follows:  “The overall purpose of the bill [which added sections 28 and 29] was to eliminate diminished capacity a defense and to disallow experts to testify to the ultimate fact of a defendant's mental state.   Instead, by legislative choice, a defendant is now faced with the arguably more difficult task of showing a mental disease or defect actually prevented him from forming the requisite state of mind, and is limited in his use of expert testimony.”  (People v. Whitler, supra at p. 341, 214 Cal.Rptr. 610;  emphasis in original.)

In addition to the defense of diminished capacity's having been abolished by Proposition 8, the Legislature has substantially restricted the definition of “malice.”   Prior to 1981, Penal Code section 188 provided that malice is “express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.”   However, this case was qualified by a judicially developed requirement that the defendant be aware of the obligation to act within society's laws and act despite such awareness as part of malice.  (People v. Conley, supra, 64 Cal.2d at p. 322, 49 Cal.Rptr. 815, 411 P.2d 911;  People v. Poddar (1974) 10 Cal.3d 750, 758, 111 Cal.Rptr. 910, 518 P.2d 342;  People v. Croy (1985) 41 Cal.3d 1, 18–19, 221 Cal.Rptr. 592, 710 P.2d 392.)   In 1981 and 1982 the Legislature amended Penal Code section 188 to provide that awareness of an obligation to act within society's laws and acting despite such awareness are not included within the definition of malice.  (See Historical Note, 47 West's Anno.Crim.Code (1988 ed.) p. 353.)   This change has made it even more difficult to rebut evidence presented by the prosecution on the element of malice.

In People v. Campbell (1987) 193 Cal.App.3d 1653, 1672, 239 Cal.Rptr. 214, defendant contended that the above-described legislative modification of the definition of malice had obliterated the distinction between murder based on express malice and voluntary manslaughter.   The court disagreed,stating:  “The legislative change in the definition of malice merely narrows the definition of malice and thereby removes one base upon which a defendant formerly could establish a diminished capacity defense to reduce murder to manslaughter.”  (Ibid.)

As a result of the abolition of the defense of diminished capacity and also the narrowing of the definition of malice, as noted above, “a defendant is now faced with the arguably more difficult task of showing a mental disease or defect actually prevented him [or her] from forming the requisite state of mind,․”  (People v. Whitler, supra, 171 Cal.App.3d at p. 341, 214 Cal.Rptr. 610.)   However, contrary to the conclusion reached by Spurlin, such a defense is still theoretically possible because there still remains a variety of non-statutory voluntary manslaughter when all of the pertinent statutes are read and considered together.

Assuming that by logical necessity a non-statutory variety of voluntary manslaughter still remains in California, then it follows that the related offense of attempted voluntary manslaughter also still exists.  (See People v. Williams (1980) 102 Cal.App.3d 1018, 1025, 162 Cal.Rptr. 748, which held that attempted voluntary manslaughter is not a logical impossibility.)

The next question is whether a defendant such as McAlroy, who offers expert testimony to rebut the existence of the required element of express malice, is entitled to an instruction which at least allows the jury to consider the alternative verdict of guilty of attempted voluntary manslaughter as opposed to only being allowed to consider verdicts as to first or second degree murder?

In People v. Geiger (1984) 35 Cal.3d 510, 525, 199 Cal.Rptr. 45, 674 P.2d 1303, the California Supreme Court held:  “where the defense is that the defendant has committed an offense other than that on which the prosecution case is predicated, and he has presented evidence which if believed supports his theory, reliability in the factfinding process demands that the jury be instructed on that offense.”   The Geiger rule applies particularly to lesser and necessarily related offenses.   However it also applies to offenses that are “related, but not necessarily included” in the offense charged.   (Ibid.)  The basis for the Geiger rule is founded in a defendant's “ ‘constitutional right to have the jury determine every material issue presented by the evidence.’ ”  (Ibid.)

In the instant case, McAlroy admitted that he stabbed the victim but contended that the crime that he committed was at most attempted voluntary manslaughter rather than attempted first or second degree murder.   That was because of the claimed absence of malice at the time of the stabbing.   That admission of the stabbing by him coupled with the contention that it constituted at most attempted voluntary manslaughter rather than murder satisfied the first requirement of Geiger.  (People v. Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)

To satisfy the second requirement of Geiger, the appellant presented evidence through the testimony of Dr. Davis, a clinical psychologist, that on the date of the stabbing, appellant's behavior was consistent with appellant's being in a “fugue” state.  (RT 281, 284, 291.)   Dr. Davis testified that although it would be possible for a person to premediate or deliberate during a “fugue” state, he believed that it would be unlikely.  (RT 290.)   In Dr. Davis' opinion, at the time of the stabbing, appellant could not discern right from wrong.  (RT 291.)

Assuming that there was Geiger error by the trial court in refusing to give the requested instructions regarding attempted voluntary manslaughter, the next question is whether such error was prejudicial and would therefore require a reversal.   In the very recent decision of the California Supreme Court in People v. Turner, 50 Cal.3d 668, 690, 268 Cal.Rptr. 706, 789 P.2d 887 [90 Daily Journal DAR 4605, 4608], the high court held that although it was error for the trial court not to instruct the jury sua sponte on the lesser offense of theft so they would have an alternative to robbery, such error was not prejudicial and therefore not reversible error.   That was the holding of the high court even though Turner was a death penalty case in which the prosecution's theory was felony murder and the special circumstance alleged was that the defendant committed the murder while he was engaged in the commission of a robbery.  (Id., at p. 690–691, 268 Cal.Rptr. 706, 789 P.2d 887.)   Therefore a finding by the jury of guilt as to theft rather than robbery would have knocked out the true finding on the special circumstance alleged.   That would have prevented the possibility of the jury and the court imposing a judgment of death.

In concluding that the instructional error was not prejudicial, the Turner court stated:  “We have long held that erroneous failure to instruct on a lesser included offense is not prejudicial if ‘it is possible to determine that ․ the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions․'  (People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913];  see also People v. Wickersham (1982) 32 Cal.3d 307, 335 [185 Cal.Rptr. 436, 650 P.2d 311].)”  (People v. Turner, supra, 50 Cal.3d at p. 690, 268 Cal.Rptr. 706, 789 P.2d 887.)

Considering the various instructions that were given to the jury in this case, and the verdict that was reached of guilty of attempted first degree murder, it seems apparent that not only did the jury find that the elements of an intentional unlawful killing with premeditation and deliberation were established beyond a reasonable doubt, but also that the additional element of express malice aforethought was present.   The jury apparently rejected the defense of unconsciousness, i.e. fugue state, raised by McAlroy.   Consequently the refusal by the trial court to instruct on attempted voluntary manslaughter was not prejudicial error, considering the instructions that were given and the strength of the prosecution's case.

FOOTNOTES

1.   The only other published decision which has agreed with Molina—People v. Johnson (1989) 210 Cal.App.3d 870, 878, 258 Cal.Rptr. 686, a First Appellate District, Division Four, opinion—was ordered depublished by the California Supreme Court.

2.   Of course, this disposes of McAlroy's contention the court erred in failing to give the following additional instruction:“The distinction between murder and manslaughter is that murder requires malice while manslaughter does not.“When the act causing the death, though unlawful, is done as a result of mental disorder, such as would cause an otherwise ordinary and reasonable person similarly afflicted to act the same or similar manner, the offense is manslaughter.   In such a case, even if an intent to kill exists, the law is that expresses [sic ] malice, which is an essential element of murder, is absent.“To establish that an attempted killing is murder and not manslaughter, the burden is on the State to prove beyond a reasonable doubt each of the elements of attempted murder and that the act which caused the death was not done as a result of such mental disorder.”Additionally, McAlroy himself finds fault with the burden shifting expressed in the third paragraph.   We also are confounded by paragraph two's application of “the reasonable man standard” to someone suffering a mental disorder.

3.   Although, as to the second instruction, McAlroy criticizes the court for substituting the word “may” for his originally drafted “shall,” he acquiesced in the change at trial.   The second instruction tracked the first in its use of “may” rather than “shall.”   The first instruction is an exact copy of CALJIC No. 3.32, which has yet to be criticized for its use of the word “may.”   Moreover, the mandatory tone of the second portion of the second instruction compensates for any lack in the first.

1.   The majority states that “(t)o the extent McAlroy's proffered instruction invited the jury to find him guilty of involuntary manslaughter, it is completely unsupported by the record.”   Although the record is not as clear as it could be on this question, a consideration of all three of the instructions requested by McAlroy strongly suggests that he was only seeking an instruction on the alternative crime of attempted voluntary manslaughter and not involuntary manslaughter.   His instruction numbers 1 and 4 only referred to manslaughter in general but his instruction number 3 referred specifically to voluntary manslaughter.

2.   Penal Code section 192 defines manslaughter as the “unlawful killing of a human being without malice.”  (See also CALJIC No. 8.37 [manslaughter defined].)  Penal Code section 192, subdivision (a) then defines voluntary manslaughter as a killing “upon a sudden quarrel or heat of passion.”

3.   Because the crime charged in the instant case was attempted murder, the prosecution was required to prove express malice rather than simply implied malice.  (See People v. Guerra (1985) 40 Cal.3d 377, 386, 220 Cal.Rptr. 374, 708 P.2d 1252;  People v. Murtishaw (1981) 29 Cal.3d 733, 763–764, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Santascoy (1984) 153 Cal.App.3d 909, 913–914, 200 Cal.Rptr. 709).

DABNEY, Associate Justice.

McDANIEL, Acting P.J., concurs.