PEOPLE v. WEBB

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Yvonne WEBB, Defendant and Appellant.

No. B071377.

Decided: August 02, 1994

Robert E. Boyce, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., David Glassman and Eugena Yasnogorodsky, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION

In a jury trial, the People prosecuted defendant Yvonne Webb for the first degree murder of her boyfriend, Scott Adams.   The People alleged two theories to sustain a verdict of first degree murder:  a willful, deliberate, and premeditated killing, and a killing committed by means of lying in wait.

Through defendant's testimony as well as that of an expert witness, defense counsel presented evidence about the battered woman's syndrome and advanced several arguments to either exonerate defendant or to mitigate her culpability.   These claims, as explained to the jury by the appropriate instructions, included self-defense, imperfect self-defense, and a killing triggered by legally adequate provocation.

Additionally, defense counsel summarily used the fact that defendant's blood alcohol level was .32 percent to support her arguments and the jury was instructed that it could consider defendant's intoxication in considering whether she acted with malice aforethought or the intent to kill.   However, defense counsel did not request a jury instruction relating defendant's intoxication to consideration of the issue of whether she had the required state of mind to sustain a verdict of first degree murder although the evidence clearly pointed to the need for such an instruction.

The jury convicted defendant of first degree murder and found she had personally used a firearm—a shotgun—during commission of the crime.   The court sentenced her to 30 years to life, a term of 25 years to life for the murder conviction plus a consecutive 5–year term for the use enhancement.

On this appeal, defendant contends that her trial attorney's failure to request a jury instruction explaining that her intoxication could create a reasonable doubt as to whether she had the state of mind required for first degree murder deprived her of the constitutional right to effective assistance of trial counsel.   Additionally, she contends that the evidence is insufficient as a matter of law to sustain the finding of first degree murder on either of the two theories advocated by the People.

We conclude that defendant's contention that she received constitutionally deficient representation at trial is meritorious.   We also conclude that the evidence is sufficient to support both theories of first degree murder.   Because the evidence is clearly sufficient to support a second degree murder conviction and trial counsel's failing could not have affected a jury determination of that crime, we reduce defendant's conviction to second degree murder subject to the People's decision to retry defendant for first degree murder.1

FACTS

Defendant had been involved with Scott Adams for several years prior to the killing.   Each was a heavy drinker.   The two often engaged in arguments during which Adams would physically harm defendant.

On November 23, 1991, the day of the killing, defendant had been with Adams at his house.   Defendant, who is five feet, seven inches and weighs 160 pounds, had been drinking throughout the day.   At about 5:45 p.m., defendant called 911 and reported a domestic dispute saying that Adams had hit her.   She also said that there was a shotgun in the bedroom closet.   Officer Samano was dispatched to the residence.

Upon his arrival, Officer Samano spoke with defendant, observed that “her eyes were somewhat bloodshot and watery [and] she had a slight slur to her speech,” and noted “a strong smell of an alcoholic beverage coming from her person.”   Defendant told him that she and Adams “had both been drinking that day and it finally got into a shouting match and then he had left.”   The officer encouraged defendant to leave the house and to “sober up” because it was obvious to him that she had been drinking.   Defendant told him that there were several guns in the house.   Officer Samano told her to take the guns with her if she was afraid Adams would use them against her.   The officer saw no signs of physical violence.

Thereafter, Officer Samano left.   Defendant remained at the residence.   At 6:50 p.m., defendant called 911 to report that she had shot Adams.

Officer Samano, along with Office McCain and other members of the police force, returned to the residence.   Officer Samano heard defendant yelling and screaming inside of the house.   Officer McCain detained defendant and noted “a strong odor of an alcoholic beverage emitting from her breath and person․  [S]he did not walk in a straight line [and] also was talking very loud to herself.”  “She had bloodshot watery eyes and ․ a lot of saliva in her mouth.”   When she spoke to him, her speech was slurred and “she would jump from one statement to a totally different statement.   And she would ramble at times.   It would be just talking.”   Defendant expressed concern about Adams as the paramedics tried to help him.

In regard to the shooting, defendant told Officer McCain that she had not known that the shotgun had bullets in it.   Additionally, she made the following statements:  “I pointed it [the shotgun] at him and said ‘sucker’ ”;  “I don't know.   Maybe I should have looked in it”;  “I am not going to deny that I am drunk”;  “If I killed him, it is a mortal sin.   I will burn in hell for it.   Yeah, we had our disagreements.   The reason we were arguing is because of our relatives.   I didn't do it intentionally like to cause physical harm.   I did it, I shot him.   He taught me how to use it.   And he told me never, never, never to point it at someone.   Always point it at the ground.   But we had a quarrel and I shot him.   I did.”   Earlier in the day, Adams had showed Webb how to load and unload the shotgun.

Later on, Officer McCain transported defendant to the police station where he administered a breathalyzer test at approximately 8 p.m.   The People and defense counsel stipulated that the test showed a .32 blood alcohol level.   Defendant told Officer McCain that starting at 2 o'clock that afternoon, she and a friend “had consumed a 12 pack of beer, some Jack Daniels and Coke, and two unknown mixed drinks.”   The killing occurred at approximately 6:45 p.m.

Meanwhile, the police found Adams in the bedroom and a .12–gauge pump action shotgun on the bed.   Adams was taken to the hospital but died soon thereafter.   He had been shot from the rear.   The shotgun pellets had damaged his intestines, liver, bladder, rectum, and two arteries and caused massive bleeding.

At trial, one witness estimated that Adams was shot from a distance of four to five feet, while another opined it was a shorter distance—one-and-a-half to two feet.   A gun test established the shotgun could not be accidentally discharged.

Defendant testified to the following.   She and Adams had been drinking a lot that day.   Adams returned home after Officer Samano had left.   He and defendant proceeded to have a series of arguments.   They went into the bedroom.   Once inside, Adams stated:  “Either you shoot me or I'll shoot you” and pushed defendant to the floor between the bed and the closet.   Adams walked over to a dresser where on occasion he kept a gun.  (A subsequent police search disclosed no guns in the dresser.)   Defendant grabbed the shotgun from under the bed, stood up, cocked the weapon, and pointed it at Adams who was walking towards her.   She intended only to scare him away because she believed he intended to kill her.   When Adams heard her cock the shotgun, “he dove towards the foot of the bed” and she shot him.   Defendant was shocked when Adams started to bleed because she thought the gun was unloaded as earlier that day, pursuant to Adams's instruction, she had taken the bullets out of it before he cleaned the gun.   Defendant did not remember making many of the statements to which Officer McCain had testified as she “was very intoxicated and shocked and in disbelief․”

DISCUSSION

Ineffective Assistance of Trial Counsel

Defendant contends that trial counsel's failure to request a jury instruction relating her intoxication to the mental state required for first degree murder resulted in constitutionally deficient representation.   For the reasons to be explained, we agree.

As amended in 1981, Penal Code section 22 provides that a defendant may not offer evidence of voluntary intoxication to negate the capacity to form any mental state;  instead, the evidence is relevant “solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”  (Emphasis added.)   In a similar vein, Penal Code section 25, subdivision (a), enacted in 1982 as part of Proposition 8, provides:  “The defense of diminished capacity is hereby abolished.   In a criminal action, ․ evidence concerning an accused person's intoxication ․ shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.”  (Emphasis added.)

These two statutes operate in a complementary fashion.  “The withdrawal of diminished capacity as a defense removes intoxication from the realm of defenses to crimes.   Intoxication is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state.”  (People v. Saille (1991) 54 Cal.3d 1103, 1119, 2 Cal.Rptr.2d 364, 820 P.2d 588.)   That is, “the defendant's evidence of intoxication can no longer be proffered as a defense to a crime but rather is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt.”  (Id. at p. 1120, 2 Cal.Rptr.2d 364, 820 P.2d 588.)

Applying these principles to the present case, evidence of defendant's voluntary intoxication was potentially relevant in four ways:  (1) on the existence of malice aforethought to establish murder;  (2) on the existence of a willful, deliberate, and premeditated killing to establish a first degree murder;  (3) on the commission of a murder by means of lying in wait to establish a first degree murder; 2  (4) on the existence of the intent to kill for voluntary manslaughter.3

On request of the People, the court submitted CALJIC No. 4.21 (1992 rev.), “Voluntary Intoxication—When Relevant to Specific Intent,” to the jury.   The instruction linked voluntary intoxication to the mental states for murder (malice aforethought) and voluntary manslaughter (intent to kill).4  However, no instruction was given linking the defendant's intoxication to either of the two theories the People advanced to establish first degree murder—a willful, deliberate, and premeditated murder or a murder committed by means of lying in wait.  (See fn. 2, ante.)   The failure to submit such an instruction to the jury is directly traceable to defense counsel because nine months prior to defendant's trial, the California Supreme Court concluded, in People v. Saille, supra, 54 Cal.3d 1103, 2 Cal.Rptr.2d 364, 820 P.2d 588, that the trial court does not have a sua sponte duty to so instruct but that defense counsel has an obligation to request a “pinpoint instruction” to relate “the evidence of [the accused's] intoxication to an element of a crime, such as premeditation and deliberation.”  (Id. at p. 1120, 2 Cal.Rptr.2d 364, 820 P.2d 588.)

The question therefore becomes whether the failure of counsel to request such an instruction deprived defendant of her constitutional right to effective counsel.

 “To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings.”   (People v. Lewis (1990) 50 Cal.3d 262, 288, 266 Cal.Rptr. 834, 786 P.2d 892.)   Generally, if the record on appeal fails to disclose why counsel failed to act in a particular way, the judgment is affirmed in order to allow the claim to be pursued in a habeas corpus proceeding in the superior court.   That way, trial counsel may have an opportunity to explain, in the course of an evidentiary hearing, the reasons for the complained of action.  (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859;  see also In re Lower (1979) 100 Cal.App.3d 144, 152–153, 161 Cal.Rptr. 24.)   However, if there “simply could be no satisfactory explanation” (People v. Pope, supra, 23 Cal.3d at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859) for counsel's action, an appellate court can grant relief if it finds that the defendant was prejudiced by counsel's constitutionally inadequate representation.   In this context, prejudice means that “the result of the proceeding was fundamentally unfair or unreliable․”  (Lockhart v. Fretwell (1993) 506 U.S. 364, ––––, 113 S.Ct. 838, 842, 122 L.Ed.2d 180.)

 The right to effective assistance of counsel includes the expectation that counsel “will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.   [Citations.]”  (People v. Ledesma (1987) 43 Cal.3d 171, 215, 233 Cal.Rptr. 404, 729 P.2d 839.)   In particular, “the duty of counsel to a criminal defendant includes careful preparation of and request for all instructions which in [her] judgment are necessary to explain all of the legal theories upon which [the] defense rests.”  (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, 112 Cal.Rptr. 1, 518 P.2d 913.)

Given the manner in which trial counsel conducted the defense, her failure to request an instruction on whether defendant's intoxication created a reasonable doubt as to whether defendant acted with premeditation and deliberation or killed while lying in wait can not be seen as the product of a tactical decision.   Simply stated, trial counsel had always recognized that defendant's intoxication was a factor the jury could and should consider in assessing defendant's culpability.   For instance, after the People had completed their case-in-chief, defense counsel unsuccessfully moved for a judgment of acquittal.  (Pen.Code, § 1118.1.)   She argued, in part, “I do not believe the evidence so far presented by the prosecution case supports a first degree murder conviction.   I think at best the evidence that we have heard would support possibly a manslaughter.  [¶]  [Defendant] had been struck and beaten by the victim.   She also was under the influence of a beverage at .32.   And that there was no intent, there was no malice aforethought.”  (Emphasis added.)

During the defense case, defense counsel called as a witness a forensic toxicologist to explain the different ways in which alcohol affects an individual.   The expert opined that given the .32 result of the breathalyzer test defendant took at 8 p.m. the evening of the shooting, her level at the time she called 911 to report the shooting (6:50 p.m.) would have been between .33 and .37.

Lastly, defense counsel's acquiescence in the submission of CALJIC No. 4.21, which related intoxication to the presence of malice aforethought and the intent to kill, demonstrated an intent to tie the fact of defendant's intoxication to her presentation to the jury.   And several times during closing argument, defense counsel referred to defendant's intoxication.5  Thus, defense counsel had no viable tactical reason to refrain from requesting an additional instruction which would have clearly explained this complex legal principle to the jury.  (Compare People v. Walker, supra, 14 Cal.App.4th 1615, 1623–1626, 18 Cal.Rptr.2d 431 [defense counsel made viable tactical decision not to seek instruction on voluntary intoxication and attempted voluntary manslaughter].)

The question therefore becomes whether defendant was prejudiced by this omission.   We believe she was.   To the extent that defendant, through her own testimony, attempted to completely exonerate herself (e.g., reasonable belief she was in danger) or to minimize her culpability (e.g., she never intended to shoot or did not know that the gun was loaded), the prosecutor undermined those theories in his closing argument by vigorously attacking defendant's credibility.   He pointed to internal inconsistencies in her testimony and to physical evidence which contradicted her claims.   The jury's verdict of first degree murder demonstrates that it resolved the credibility issue against defendant, a finding binding upon us as being supported by substantial evidence.

However, the fact of defendant's intoxication was not subject to dispute.   The parties had stipulated that she had a blood alcohol reading of .32, a level four times higher than the legal limit to drive a car (Veh.Code, § 23152, subd. (b)) and Officers Samano and McCain had each testified to their observations of the indicia of defendant's intoxication.   Thus, defendant's intoxication was not subject to the same attacks the prosecutor had made on her other claims.   It was therefore incumbent upon defense counsel to request that the jury be precisely instructed on how it could consider this objective and uncontradicted evidence of intoxication in determining the degree of murder.

CALJIC No. 8.20 correctly informed the jury:  “The word ‘deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action․  [¶] [A] mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree.  [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, she decides to and does kill.”   The jury could, and did, find that defendant, notwithstanding her intoxicated state, intended to kill;  however, it was not asked to consider whether defendant's .32 blood alcohol level created a reasonable doubt as to whether the killing was deliberate and premeditated.   The evidence certainly warranted a “pinpoint” instruction to inform the jury that it could use the fact of defendant's intoxication in evaluating whether she had given her action the type of cognitive contemplation embraced within the legal concept of a deliberate and premeditated killing.

In order to avoid the force of this conclusion, the Attorney General argues, without citation to any authority, that, in all reasonable likelihood, the jury, on its own, understood that evidence of intoxication could create a reasonable doubt as to evidence of premeditation and deliberation.   The argument lacks merit.   We are hard pressed to see how or why the jury could understand a legal principle which was never explained to it.   In fact, it is certainly possible that the jury was misled into believing that it could not so consider the evidence.   After all, CALJIC No. 4.21 told the jury that it should consider defendant's intoxication in deciding whether she acted with malice aforethought or had the intent to kill but did not indicate that intoxication was additionally pertinent in deciding whether the mental state for first degree murder existed.   The jury could well have believed, albeit erroneously, that this omission meant that intoxication was not relevant in determining the degree of murder.  (See People v. Saille, supra, 54 Cal.3d at p. 1119, 2 Cal.Rptr.2d 364, 820 P.2d 588.)

As the “ultimate purpose of [the right to effective assistance of counsel] is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result” (People v. Ledesma, supra, 43 Cal.3d at p. 215, 233 Cal.Rptr. 404, 729 P.2d 839), we believe that defendant has amply demonstrated that counsel's failure to request a jury instruction linking intoxication to the state of mind required for first degree murder resulted in a violation of that right.   Taken together, defendant's extremely high level of intoxication and many of her actions tended to belie a claim of a premeditated and deliberate killing.   For instance, she telephoned “911” immediately after the shooting;  she expressed concern about Adams while the paramedics tended to him;  and she told the arresting officer:  “I am not going to deny that I am drunk” and “If I killed him, it is a mortal sin.   I will burn in hell for it.”   On this record, we believe it is reasonably probable that a properly instructed jury would have concluded that the evidence of her intoxication created a reasonable doubt as to whether she harbored a state of mind sufficient to sustain a finding of first degree murder.   Consequently, the omission of that instruction renders the result of the trial—the verdict of first degree murder—unreliable.

Ordinarily, this conclusion would result in a reversal and remand for a new trial.   However, as previously noted, defendant also contends that the evidence is insufficient to sustain the first degree murder conviction on either of the two theories advanced at trial by the prosecutor.   If defendant is correct, then double jeopardy would bar a retrial on those theories.  (See, e.g., People v. Pierce (1979) 24 Cal.3d 199, 209–210, 155 Cal.Rptr. 657, 595 P.2d 91.)   Accordingly, in order to determine the remedy to which defendant, having prevailed with her contention of constitutionally deficient representation by trial counsel, is entitled, we must address her attack on the sufficiency of the evidence.

Sufficiency of the Evidence

 “Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation․  Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt.  [Citations.]  The standard is the same in cases such as this where the People rely primarily on circumstantial evidence.  [Citation.]”  (People v. Perez (1992) 2 Cal.4th 1117, 1124, 9 Cal.Rptr.2d 577, 831 P.2d 1159.)

A willful, deliberate and premeditated killing requires an intentional killing in which the slayer has weighed and considered the question of the killing and the reasons for and against such a choice, and having the consequences in mind, decides to kill.   The duration of time in which the slayer reflects is not dispositive as a cold, calculated judgment may be arrived at in a short period of time.  (Id. at pp. 1123–1124, 9 Cal.Rptr.2d 577, 831 P.2d 1159, quoting CALJIC No. 8.20.)   Generally, three categories of evidence assist a reviewing court in determining whether the record supports a reasonable inference that the killing resulted from preexisting reflection and weighing of considerations.   They are:  (1) planning activity, (2) motive, and (3) manner of killing.   However, these factors, “while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.”  (Id. at p. 1125, 9 Cal.Rptr.2d 577, 831 P.2d 1159, citing People v. Anderson (1968) 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942.)

In this case, we find the following facts particularly pertinent.   Defendant clearly had a motive to kill Adams—he had been physically abusing her for several years and had hit her that afternoon.   Although Officer Samano encouraged defendant to leave the premises after he had responded to her 911 call, she chose to remain at Adams's home, knowing that there were loaded guns in the residence and that Adams would return.   Earlier that day, defendant, pursuant to Adams's request, had emptied the shotgun of bullets.   As the shotgun was loaded when defendant fired at Adams, a reasonable inference is that defendant reloaded the weapon as part of her decision to kill Adams.   Adams returned and the two quarrelled again.   Defendant picked up the shotgun and cocked it—an action indicating her intent to carry out a previously made decision to kill Adams.   Defendant pointed the gun at Adams and said “sucker,”—indicating that she was carrying out her plan to exact revenge by killing him.   Defendant shot Adams from the rear, suggesting that she had decided to kill him and merely waited until Adams was unaware before she fired the fatal shot.   As so viewed, the evidence, though admittedly not overwhelming, is sufficient to support the conclusion that a reasonable jury could find the murder was willful, deliberate, and premeditated.

 In a similar vein, we find that substantial evidence was presented from which a reasonable jury could conclude that the murder had been committed by lying in wait.   The jury was instructed pursuant to CALJIC No. 8.25 (1989 Revision), an instruction which has repeatedly been held to contain the substance of all the legal requirements of the offense.  (People v. Ceja (1993) 4 Cal.4th 1134, 1139–1140, 17 Cal.Rptr.2d 375, 847 P.2d 55 and cases cited therein.)   In pertinent part, the instruction provides:  “The term ‘lying in wait’ is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise even though the victim is aware of the murderer's presence.   The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.”

As already explained, the record contains substantial evidence of premeditation and deliberation, thus leaving the only other inquiry to be whether there was substantial evidence that defendant engaged in the requisite concealment.   The concealment need not be physical.   It is sufficient if the defendant's intent is concealed by “actions or conduct, and the concealment of purpose puts the defendant in a position of advantage, from which the fact finder may infer that lying in wait was part of the defendant's plan to take the victim by surprise.  [Citations.]”  (People v. Ceja, supra, 4 Cal.4th at p. 1140, 17 Cal.Rptr.2d 375, 847 P.2d 55.)   In light of defendant's clear motive to kill Adams and the fact that he was shot from the rear, the evidence, taken as a whole, logically supports the inference that the murder was the culmination of a plan to take Adams by surprise from a position of advantage, the hallmark of a murder by lying in wait.  (See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 163–164, 5 Cal.Rptr.2d 796, 825 P.2d 781.) 6

We therefore reject defendant's contention that the evidence presented at trial was insufficient as a matter of law to support a finding of first degree murder on the two theories advanced by the People.   Therefore, if there is a retrial of this case, the People may retry defendant for first degree murder on either or both of those theories.

The Remedy

 We now turn to the issue of the appropriate disposition of the case.   In People v. Alexander (1983) 140 Cal.App.3d 647, 666, 189 Cal.Rptr. 906, the court held:  “An appellate court is not restricted to the remedies of affirming or reversing a judgment.   Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial.   [Citations.]  Such a modification of judgment is appropriate where there was error in failing to instruct on lesser included offenses but the evidence clearly establishes guilt of a lesser degree of the offense for which [s]he was convicted.”

By a parity of reasoning, we believe it appropriate to modify the judgment to reflect a conviction for second degree murder.   To the extent that defendant attempted to use her intoxication to show she did not act with malice aforethought or the intent to kill, the jury resolved that claim adversely to her by convicting her of murder instead of a lesser included homicide offense.7  Substantial evidence supports that decision and defendant has not urged to the contrary.   Submission of an additional instruction linking intoxication to the state of mind required for first degree murder would not have helped defendant to argue lack of malice or intent to kill.   The most defendant could have gained through submission of that instruction would have been a decision that she was not guilty of first degree murder.   In that situation, the only logical conclusion, given the jury's other findings, is that she would have been convicted of second degree murder.8

Stated another way, “[h]ad the trial resulted in a conviction of [second degree murder], this court could not touch it.   Defendant has, at most, shown that [s]he is entitled to a reduction to that crime.   The People, however, are privileged to try to obtain another conviction of [first degree] murder.   The record clearly contains sufficient evidence to justify the attempt.   On the other hand, the prosecution may decide that it is satisfied with [second degree murder]—a decision which we neither suggest nor discourage.   Our disposition should, therefore, preserve these options.  [Citations.]”  (People v. Garcia (1972) 27 Cal.App.3d 639, 647–648, 104 Cal.Rptr. 69;  see also People v. Edwards (1985) 39 Cal.3d 107, 118, 216 Cal.Rptr. 397, 702 P.2d 555.)

DISPOSITION

The judgment is reversed with the following directions:  If the People do not bring defendant to trial within 60 days after the filing of the remittitur in the trial court pursuant to Penal Code section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of second degree murder (Pen.Code § 189) and shall resentence defendant accordingly (Pen.Code § 190, subd. (a)).

FOOTNOTES

1.   By way of a supplemental brief, defendant urged that CALJIC No. 2.90, the standard instruction defining reasonable doubt, denied due process.   In so urging, defendant placed great reliance upon the United States Supreme Court's grant of certiorari in Sandoval v. California, 509 U.S. 954, 114 S.Ct. 40, 125 L.Ed.2d 789 (1993).   However, that court recently decided Sandoval, together with Victor v. Nebraska, and upheld the constitutionality of this instruction.  (Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583.)   Moreover, the California Supreme Court has consistently upheld CALJIC No. 2.90 against constitutional attack.  (See cases cited in People v. Jaramillo (1993) 20 Cal.App.4th 196, 198–199, 24 Cal.Rptr.2d 394.)   The contention therefore does not warrant further examination.

2.   Defendant's intoxication would be equally pertinent to consideration of either theory of first degree murder.   The instruction on lying in wait, CALJIC No. 8.25, indicates that the duration of the period in which the defendant lies in wait must be “such as to show a state of mind equivalent to premeditation or deliberation” and then defines “premeditation” and “deliberation” in the exact same language which is used in CALJIC No. 8.20 to explain the elements of a deliberate and premeditated murder.

3.   The Saille court concluded that since one portion of the legislation abolishing diminished capacity had amended the statutory definition of malice found in Penal Code section 188, “the concept of ‘diminished capacity voluntary manslaughter’ (nonstatutory manslaughter) ․ is no longer valid as a defense” (People v. Saille, supra, 54 Cal.3d at p. 1114, 2 Cal.Rptr.2d 364, 820 P.2d 588) because “now when an intentional killing is shown, malice aforethought is established.   [Citation.]  However, the [Saille] court held a defendant is still free to show that, because of voluntary intoxication, the intent to kill was not in fact formed.  [Citation.]”  (People v. Walker (1993) 14 Cal.App.4th 1615, 1622, 18 Cal.Rptr.2d 431;  fn. omitted;  see also People v. Morales (1992) 5 Cal.App.4th 917, 927, 7 Cal.Rptr.2d 358.)This portion of Saille's holding is not applicable to the present case because defendant did not raise a theory of “diminished capacity voluntary manslaughter.”   Instead, she urged that voluntary manslaughter was present either on the theory that the killing was a result of legally adequate provocation (the arguments and fights she had had with Adams throughout the day) or imperfect self-defense (her unreasonable but good faith belief in the need to defend herself from Adams).

4.   As given, the instruction provides:  “In the crime of murder or that of voluntary manslaughter which is a lesser crime thereto, a necessary element is the existence in the mind of the defendant of the mental state of malice aforethought and intent to kill, respectively.  [¶]  If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether defendant had such mental state.  [¶]  If from all the evidence you have a reasonable doubt whether the defendant formed such mental state, you must find that she did not have such mental state.”

5.   When discussing voluntary manslaughter, counsel stated:  “And then another way [to show imperfect self-defense] is the fact that she [defendant] was under the influence of alcohol and she misperceived the danger.   In any case she didn't actually form the malice or premeditate to do the killing.”  (Emphasis added.)   Later on, counsel argued:  “․ There is another basis for voluntary manslaughter.   The fact there is adequate provocation because he [Adams] had been fighting her all day.   Also that there was alcohol.   She could have misconceived the threat.”

6.   In that regard, we quote the following comments made by the trial judge at the time of defendant's sentencing.  “They [the jury] found the defendant guilty of murder in the first degree and that she had personally used a firearm.  [¶]  In my opinion there was more than substantial evidence, there was overwhelming evidence, upon which the jury could have reached that conclusion.  [¶] In my opinion this murder was cruel, senseless, callous, cold-blooded.  [¶] In my opinion, and I can only conclude that the jury agreed, the defendant was not being candid.   From the point on the anatomy of the victim of the entrance wound, only one of two things could have happened.  [¶] Either the defendant shot the victim with his back toward the defendant, probably in a position of leaning over, or the defendant affirmatively walked around behind the victim and pulled the trigger.  [¶] It was indeed cruel, cold, vicious, unjustified, inexcusable.”

7.   Appropriate instructions were submitted to the jury defining voluntary and involuntary manslaughter.

8.   Pursuant to this court's request, the parties submitted supplemental briefs on the issue of reducing defendant's conviction to second degree murder.   Relying upon People v. Whitfield (1994) 7 Cal.4th 437, 27 Cal.Rptr.2d 858, 868 P.2d 272, defendant urged that such a reduction would be inappropriate because the jury could have improperly convicted defendant of second degree murder without considering the fact of her intoxication.   We disagree.  Whitfield is patently distinguishable from this case.  Whitfield involved a second degree murder prosecution based upon drunk driving where the People sought to establish the existence of malice through an implied malice theory.   The Whitfield court held that in that circumstance, the accused is entitled to an instruction linking his intoxication to the required state of mind—implied malice.   In the present case, the submitted jury instructions (CALJIC Nos. 4.21, 8.11, 8.37, and 8.50) adequately explained to the jury that second degree murder requires malice and that defendant's intoxication was relevant in determining the existence of malice.

CHARLES S. VOGEL, Associate Justice.

EPSTEIN, Acting P.J., and BRETT KLEIN, J. Assigned,* concur.

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